Following changes introduced by the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018, the Home Office has issued a revised ‘Code of practice on preventing illegal working: Civil penalty scheme for employers’. This sets out the document checks prescribed by the Home Office that an employer should make to ensure someone has the right to work, or continue working, in the UK and the factors to be considered when determining the amount of the civil penalty payable for a breach of the Immigration, Asylum and Nationality Act 2006.
The revised code of practice takes into account the introduction of the online ‘Employer Checking Service’ whereby, from 28 January 2019, employers have had the option to conduct an online right to work check, which will establish a statutory excuse against a civil penalty in the event that the employee is found to be working illegally. However, not all employees or potential employees will have an immigration status that can be checked at this stage, in which case a manual check must be completed. Follow-up checks for those whose right to work is time limited can also be carried out online or manually.
The code of practice applies when calculating the penalty amount in respect of any employment which commenced on or after 29 February 2008 where the breach of Section 15 of the Act occurred on or after 28 January 2019, or when determining liability where an initial check on a potential employee, or a repeat check on an existing employee, is required on or after 28 January 2019 in order to establish or retain a statutory excuse.
Employers are reminded that an employer who is found to have knowingly employed a person who is not allowed to work in the UK, or is considered to have had reasonable cause to believe that the employee was disqualified from employment because of their immigration status, can face criminal prosecution under Section 21 of the Act and, if convicted, up to five years’ imprisonment and/or an unlimited fine.