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UNITED KINGDOM: Home Office Launches Consultation on the Prevention of Illegal Work

The Home Office is carrying out a consultation on the current civil penalty regime that applies to employers who are found to be employing unauthorized workers. The civil penalty regime has been in place since February 2008 and imposes fines of up to £10,000 per employee found to be working without permission, together with a requirement for employers to perform annual employment verification checks on those with limited leave (permission) to remain.

The consultation and online survey make it clear that the Home Office is considering the following changes to the current legislation:

  • Increasing the civil penalty from £10,000 to £20,000 for repeat offenders with a maximum penalty of £15,000 for the first time offenders
  • Simplifying the formula for calculating the penalty and the factors for reducing this where employers cooperate and report
  • Removing the current process of serving a warning letter on first-time offenders
  • Considering previous civil penalties as an aggravating factor when determining the current penalty level
  • Reducing the number of acceptable documents that can be produced to simplify the right-to-work checks
  • Using a biometric residence permit as the main acceptable document for right-to-work checks for most non-European Economic Area (EEA) nationals
  • Removing the requirement that employers conduct annual checks on any employees who have limited permission to reside in the UK and instead only requiring employers to check at the end of the employee's period of stay
  • Introducing measures to allow recovery of a civil penalty from directors and partners of limited liability businesses following failure to pay by the business

The proposed changes appear to be aimed at simplifying the current regime for preventing unauthorized work and in targeting repeat offenders. In particular, removing annual employment verification checks for those employees with long-term permission to work is welcome, as this is an unnecessary and burdensome requirement. However, removing the first warning process could mean that new employers and start-up businesses could now face penalties for first-time inadvertent breaches without being given the opportunity to show they can comply.

Also, there are significant risks that by reducing the number of acceptable documents proving a person's right to work, some migrants who are lawful long-term residents without the new biometric residence permits will not be able to access employment. As part of the consultation process, the Home Office is inviting businesses to undertake a short online survey.

CONSULTATION DOCUMENT

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