The Home Office recently confirmed increases to illegal working fines, which are set to come into force on 22 January 2024. Alongside this, the Home Office has published a draft code of practice on preventing illegal working which, once approved, will apply to all right to work checks from 22 January 2024. This code will also apply where a follow-up check is required to maintain a statutory excuse, even if the initial right to work check was undertaken using the previous version of the code which was current at the time.
The draft code sets out how employers can establish a statutory excuse for right to work checks and how penalties will be administered and calculated. The code remains largely unchanged from the previous code issued on 6 April 2021, therefore there should be little impact to how employers currently undertake right to work checks. The main change is in relation to penalties and how these are calculated. The code confirms that the minimum penalty will be £45,000 per worker for the first breach, then increasing to £60,000 per worker for repeat breaches. This is a significant increase from the current level of £15,000 for the first breach and £20,000 for repeat breaches. There is, however, scope for a fine to be reduced if there are mitigating factors, or if it’s a first time fine and payment is made in full within 21 days.
Businesses who are issued civil penalties may also be subject to immigration control, which may impact any future ability to make immigration applications; for example, if it wishes to submit a sponsor license to sponsor overseas nationals.
What should employers be doing now?
The significant increase in penalties and potential restrictions means that it is vital for employers to ensure that they are conducting right to work checks on every employee in accordance with the guidance. Civil penalties can be avoided if the employer establishes a statutory excuse by undertaking right to work checks in line with the code of practice.
Therefore, it is advised that employers review their internal right to work check policy and ensure that their current process meets the requirements of the code of practice. Those staff responsible for right to work checks should be trained on how to carry out the checks correctly.
In addition, employers should ensure that they conduct any follow-up checks on employees whose permission is time-limited and ensure that these checks are carried out in accordance with the updated code of practice.
If you have any queries or are in need of specific advice in relation to right to work checks or any Employment law query, please contact a member of the AfterAthena team (part of the Napthens Group) who are able to offer 30 minutes of free advice to QCS members.
