UK employers can employee foreign national workers in their organisation provided they meet the relevant visa and immigration requirements. However, if an employer in UK is found guilty of employing someone who they knew – or had reasonable cause to believe – did not have the right to work in UK, then they will face a civil penalty, with the possibility of a 5 year prison sentence. However, a employer in this situation can exercise the option of appealing a civil penalty.
What is a civil penalty?
An employer in the UK can have a civil penalty imposed upon them for illegal employment. In this situation, you may get a ‘referral notice’ in which you will be informed that your case is being considered and you may have to pay a civil penalty for employing an illegal worker. You may have to pay a fine of up to £20,000 for each illegal worker. If you are found liable then you will be sent a ‘Civil Penalty Notice’. This notice will inform you about how to pay, what to do next and how you can object the decision. You can respond to this civil penalty notice in 28 days.
As mentioned, you can be found guilty if you had a “reasonable cause to believe” that the migrant being employed is in the UK illegally.
What counts as a ‘reasonable cause to believe’?
If the employer had any reason to believe any one of the following, then it may be considered illegal employment:
- That employee didn’t have leave to enter or remain in the UK
- That employee’s leave had expired
- That they were not allowed to do certain types of work as a condition of their UK visa
- That their papers were false or incorrect
Apart from the employer having reasonable cause to believe, they can also be penalised if they employ someone who does not have right to work and they did not do the correct check or did not check it properly.
Appealing a civil penalty
In response to the ‘Civil Penalty Notice’, you have the option of appealing a civil penalty. When you get a civil penalty, you can make an appeal to lessen the fine or to challenge it completely. You do need to act quickly, however, as there is a time restriction and strict protocol for the appeal. Firstly, you need to submit the appeal, written under one of these 3 heads of appeal:
- Your business cannot be held liable because you did not employ an illegal worker;
- Your business did perform the required documentation checks on the illegal employee and thus has a statutory excuse; or
- The penalty imposed is too high because mitigating factors were not properly taken into account.
You need to prepare properly before submission of your appeal and you also need to include supporting documentation and evidence to make your case as strong as possible. It is very common as part of the appeal process that you will receive an inspection visit from the Home Office. If you prepared well and cooperate with them, it may work in your favour. Also, to put your side strongly, you should provide necessary visibility and access to requested documents during their visit. If you don’t get decision in your favour, you can still appeal to the Court for a full hearing.
It is important that you have a strategy in place from the time you get a civil penalty notice. You should follow the appeal process accurately so that you can challenge the penalty in a robust way. This will maximise your chances of getting the decision in your favour.