Home Office – Illegal Workers, Criminal Prosecutions & Civil Penalties
“The Byron Effect”
The recent media frenzy surrounding Byron burgers with the Home Office is nothing new. The ever expanding ‘Immigration Enforcement Department’ is gaining momentum as the Government continues to pledge a crackdown on illegal working and severe penalties await employers who either intentionally employ illegal workers or those who unknowingly employ illegal workers without conducting the correct ‘due diligence’ checks. Either way, if you are a Business wanting to ensure that they are conducting the rights checks or you have recently had a Home Office visit or raid, contact our experienced lawyers for expert advice and assistance in how to not only ensure that you comply with the Home Office guidelines in employing non illegal workers but also how to deal with the aftermath of a visit. Our guide below is a client guide to avoid any future Home Office Visits or subsequent prosecutions
Intentional employment of illegal workers:
If you are found to have intentionally employed an illegal worker, you could face prosecution (carrying a maximum of 5 years imprisonment) and/or an unlimited fine. This includes, for example if you had any reason to believe that:
- they didn’t have leave (permission) to enter or remain in the UK
- their leave had expired
- they weren’t allowed to do certain types of work
- their papers were incorrect or false
If you are facing a Home Office led investigation or they have indicated that you may be facing criminal proceedings, contact us immediately. We have a dedicated team specialising in cases of this nature and can ensure that you have the appropriate and robust legal representation you deserve.
Unknowingly employing of illegal workers:
Most of our clients contact us following a planned Home Office visit or an unplanned raid from the Immigration Department. Either way, this can be a stressful experience for you and your business leading to a huge impact on the running of your organisation, the Immigration Officers are present. During the raid they will examine your company records/paperwork. A visit/raid can involve between 5-20+ officers The Officers are normally looking to see if you have demonstrated due diligence when employing your workers and are not in breach of the section 15 of the Immigration, Asylum and Nationality Act 2006.
Due Diligence Checklist
This is fundamental if you want to ensure that you don’t face prosecution/civil penalty notice. If you are able to demonstrate due diligence then you will not face further action from the Home Office. It is very important to understand that you are not an expert in ID fraud and cannot be expected to differentiate between genuine and fake ID documents, that is the job of the fraud expert. The Home Office should not penalise you for failing to identify false ID documents, what they want to see is that you correctly and satisfactorily carried out the relevant checks. We have compiled a non exhaustive checklist for our clients to ensure that they are complying with Due Diligence, some examples of what you should check are that:
- the documents are genuine, original and unchanged and belong to the person who has given them to you
- the dates for the applicant’s right to work in the UK haven’t expired
- photos are the same across all documents and look like the applicant
- dates of birth are the same across all documents
- if 2 documents give different names, the applicant has supporting documents showing why they’re different.
What happens after a visit/raid?
Following this, you will be notified in writing of the action, if any, that is to be taken by the Home Office Immigration Department. If you are found to have carried out due diligence (even where illegal workers were found), you are unlikely to face any sort of civil penalty, this is known as ‘Statutory Excuse’ and essentially is your defence against a civil penalty. This should be set out in the letter to you. It is important to understand that just because you have found to have a Statutory Excuse (by way of showing Due Diligence), this will not exempt you from any future visits or raids by the Immigration Department. In fact, we have had clients who have not been penalised because they had shown Due Diligence and were raided without notice a few months later. Contact us for further information and advice regarding this and what we can offer.
If however, you are found not to have carried out the correct Due Diligence, then you will not have a Statutory excuse. In this event, you will initially get a ‘referral notice’ to let you know that your case is being considered and you may have to pay a civil penalty (fine) of up to £20.000 for each illegal worker. You will then receive a separate penalty notice, confirming that you have been found to be in breach of section 15 of the Immigration, Asylum and Nationality Act 2006 and will set out the exact penalty amount per worker. You will need to respond to the civil penalty notice within 28 days. Your options are to pay or where you believe you had carried out the checks or where there may have been a misunderstanding, you can object to this decision and appeal. An appeal will normally take place at the County Court.
Please note that your business’s details may be published by Immigration Enforcement as a warning to other businesses not to employ illegal workers.
What we can do for you…
We offer hourly rates for our expertise as well as fixed fees, dependent on the level of work/lawyer conducting the work. Our in house barrister, Rabia Mir specialises in Home Office Prosecutions.
We offer the following (non exhaustive list – please contact Jonathan Black/James Skelsey directly to discuss further):
Due Diligence Compliance Packages:
- Start up Due Diligence Package – This includes us attending your business and advising on what documents, checks you are required to make to comply with the Home Office guidelines for due diligence.
- Comprehensive Compliance Package – this includes the Start up due diligence, but additionally our lawyers will go through a pre agreed number of employee records with you and advise on whether they would comply with due diligence and where improvement is needed.
- Full Compliance Package – This package includes both the Start up and Comprehensive Package and also the following:
- Training offered to Supervisors/managers/admin staff (dependent on number of people, a fixed or reduced rate can be discussed) on Due Diligence requirements and what to look for when employing staff.
- Drafting and setting up relevant employee forms to ensure that you are complying with Due Diligence.
- Setting up a quarterly plan for your o review your employee records.
- 24 hour advice throughout this period and continued telephone/email support.
- Written advice.
Pre/Post Home Office Visit/Raid:
- Where you are due to receive a notified visit from the Home Office, we offer a service where our lawyers will attend your business address and advise on your employee records and whether they comply with Due Diligence.
- We offer a one off consultation post Home Office raid (which means that the Home Office immigration officers have attended without notice). The advice and assistance includes setting out the next steps and preparing you for the possible outcomes.
- If you have received a referral notice or penalty notice from the Immigration Department – contact us immediately and we can advise on your next steps, lodging an application with the County Court (where you are objecting to the fine) and we also deal directly with the Home Office appointed legal firm (known as the Respondent). We will walk you through the legal appeal process and have lawyers on hand 24 hours a day to liaise with both the Home Office’s lawyers as well as the County Court so you don’t have to. Again, this service can be both on a fixed fee or an hourly rate.
Criminal prosecution/Court proceedings:
- If you are facing criminal proceedings because the Home Office believe that you knowingly employed illegal workers, contact us immediately as we can attend Court on your behalf and make contact with the prosecution as well as obtain the relevant disclosure documents that sets out the particulars of any prosecution.
Finally, if you want to just contact us and have a confidential conversation, please do so. We are Criminal Defence Solicitors here to advise and help with your business needs.