WHEN IS AN ILLEGAL WORKING CIVIL PENALTY NOT AN ILLEGAL WORKING CIVIL PENALTY?
With immigration enforcement activity at an all-time high we thought it would be a good time to look at what constitutes an illegal working civil penalty and what does not.
An illegal working civil penalty may be imposed upon any employer operating in the UK found to be employing an illegal worker. It’s important to note that any penalty imposed is done so through a civil (non-criminal) process, although more serious criminal action can be taken against an employer for ‘knowingly employing’ an illegal worker.
‘Illegal working’ is an offence committed by the individual who is subject to immigration control, whereas an ‘illegal working civil penalty’ is served upon the employer.
What is an illegal worker?
An illegal worker is any person, aged 16 years or older, who is carrying out any form of work but is disqualified from doing so by their immigration status (or lack of status). If an individual has no immigration status, then they will be classed as an illegal worker. If an individual has some form of immigration status and they are working outside of their granted permission, then they are classed as working in breach of their conditions.
It's interesting to note that very rarely are individuals arrested, charged or prosecuted for illegal working, the main focus of any illegal working operation seems to be on the imposition of the immigration fine upon the employer.
A penalty should not be served when there is no evidence of employment.
Fundamentally, if a person is not working, for example is purely living upon business premises or is visiting, then a penalty should not be imposed. Any civil penalty must be supported by a statement of case highlighting the evidence held by Immigration Enforcement. Without any evidence of work then a civil penalty case should not be brought against the employer.
Additionally, there must be evidence of employment, that is to say that a number of contractual elements are satisfied:
An offer is made by one party
The other party accepts the offer
There is consideration of action and reward (the reward does not have to be financial)
There is intention from both parties to be bound by the agreement (this is cemented at the point of acceptance of the offer)
The parties have contractual capacity
Immigration enforcement define employment as, ‘employment under a contract of service or apprenticeship, whether express or implied and whether oral or written’.
It is for Immigration Enforcement to make out their case against any employer and the above elements should be evidenced within their statement of case.
What if there is no employer?
There are scenarios where there is evidence of work but no evidence of employment by virtue of there being no employer. These are generally cases where an individual is self-employed and is providing a service via a contract for services as opposed to a contract of service (employment contract). Although a penalty should not be served in such cases, it is often for the alleged liable party to prove that an individual was engaged under a contract for services.
If an employer has carried out a right to work check should there be a penalty?
The short answer is ‘no’, however, this question is not as straightforward as it may seem. Many employers are caught out by the complexities and details of the right to work check code of practice. Although there is additional Home Office guidance on completing these checks, the sheer variety of evidence which may be provided as proof of a right to work has made the process fraught with risk.
Additionally, if just one of the requirements outlined in the code or the guidance document are not adhered to, the Home Office will often hold the employer to account. ‘Online checks’, ‘share codes’, ‘discrimination’, ‘eVisas’, ‘supplementary work’, ‘IDSP’s’, ‘manual checks’, ‘positive verification notices’ and ‘acceptable documents’ make conducting a check extremely challenging for any business owner, manager or HR professional.
However, if an employer has completed the checks in line with those prescribed by the Home Office then they will qualify for what is known as a statutory excuse and the penalty will not be imposed or will be cancelled for that particular individual.
What if Immigration Officers have acted outside of their statutory powers?
There have been many cases where officers have acted outside of their statutory powers and/or the guidance and codes by which they should abide, does this mean that there should be no penalty?
Any imposed penalty is considered via a civil process which provides a number of opportunities to challenge the penalty. Where there is clear evidence of unlawful actions a penalty case may be cancelled with immediate effect, however, this must be evidenced sufficiently for the Secretary of State (Home Office) to consider cancelling the penalty. The burden of proof in a civil matter is ‘on the balance of probabilities’, this means that ultimately, should the case be heard in a civil court, then the Home Office are only required to prove that their case is more likely to be true than not. This often results in Immigration Enforcement advancing cases to the court for consideration by a judge.
In Summary:
An illegal working civil penalty is not an illegal working civil penalty when there is no evidence of work, when there is no evidence of employment, when the required right to work checks have been completed or when there is information to suggest that the employer is not liable to the imposition of a penalty.
