The overwhelming majority of employers and migrants in the UK are law abiding; however, illegal migrant working is still a problem that the UK Border Agency are seeking to clamp down on. Not only the employer, but also the employee, can now face serious consequences if they are found to be employing illegal workers.
Consequences for the worker
On finding people working in the UK illegally, the UKBA will arrest and probably detain them and take subsequent steps to remove them.
Consequences for the employer
Working illegally is not to be tolerated in the UK and the UKBA has several different ways of punishing employers who employ migrants illegally. For support on how, as an employer, you can take steps to prevent illegal working, you should visit the relevant section of the UKBA website.
In accordance with section 15 of the Immigration, Asylum and Nationality Act 2006, UKBA introduced a civil penalty system in February 2008 for employers who use illegal workers.
If staff carrying out enforcement and compliance visits find that an employer is using illegal migrant workers, they will issue the employer with a notification of potential liability. Following the consideration of evidence, they may then issue a notification of liability and a civil penalty of up to £10,000 for each illegal worker.
Other penalties may include the employer being downgraded on the register of sponsors or the employer’s licence being cancelled and removed from the register of sponsors, so they are unable to bring any migrant worker to the UK or keep any existing migrants.
If UKBA find an employer who is employing illegal migrant workers, they may look at certain factors in deciding the level of the civil penalty to be imposed. These factors include the type of eligibility checks that the employer has made on its workers, the number of times that UKBA have previously issued a warning or imposed a civil penalty, and the extent to which the employer has cooperated with them. The civil penalty Code of Practice contains more guidance on this and can be found on the UKBA website.
There is also the criminal offence of knowingly employing an illegal migrant worker under section 21 of the Immigration, Asylum and Nationality Act 2006. This offence will be used in more serious cases, in which employers have knowingly used illegal migrant workers, often for personal financial gain. This offence is punishable with a maximum two-year custodial sentence and/or an unlimited fine.
How can employers avoid civil penalties?
Since January 1997, employers have had a duty to check that all new employees are entitled to work in the UK. If they are later found to have employed an illegal migrant worker, the checks they have made will give them a defence against conviction or an excuse against payment of a civil penalty.
Since the law changed in February 2008, the checks that employers should make depend on the initial employment date of the individual. Employers should also make further checks on documents at specified intervals when an employee has a time limit on their permission to enter or remain in the UK.
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