Latest guidance on preventing illegal working

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The Home Office has published an updated (January 2019) version of its “Code of practice on preventing illegal working” which can be found at https://bit.ly/2TkPbt1.

Replacing the Code published in May 2014, this takes account of the Immigration (Restriction on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018 (https://bit.ly/2CUoi8b) which describes how an employer may be excused from paying a penalty by carrying out a right to work check using the Home Office online checking service.

Employers are reminded that they have a responsibility to prevent illegal working in the UK by ensuring that their employees have the right to work in this country.

The illegal working provisions of the Immigration, Asylum and Nationality Act 2006 came into force on 29 February 2008.

The new Code applies to employers who employ staff under a contract of employment (a contract of service or apprenticeship), whether express or implied and whether oral or in writing.

It applies:

  • when calculating the penalty amount; in respect of any employment which commenced on or after 29 February 2008 where the breach of s.15 of the Act occurred on or after 28 January 2019

  • when determining liability; where an initial check on a potential employee, or a repeat check on an existing employee, is required on or after 28 January 2019 in order to establish or retain a statutory excuse.

When the employment commenced on or after 29 February 2008 and the breach occurred on or after 16 May 2014 and before 28 January 2019, the Code published in May 2014 applies.

The online checking service can be accessed at https://bit.ly/1Aqa6h8.

The starting point for the calculation of the civil penalty where an employer is found to be using illegal workers, but has not done so in the previous three years, is £15,000. If they were found to be employing illegal workers within the previous three years, the starting point is £20,000.

Comment from Peninsula Employment Law Director Alan Price

With Brexit on the horizon, ensuring the legality of employing workers from overseas continues to receive significant attention from the Government.

It is the responsibility of the employer to ensure it has conducted the appropriate checks and it can be fined up to £20,000 even if it was not aware that the individual was working in the UK illegally.

As many employers will employ overseas workers, this reaffirms the importance of remaining up to date with all new developments and guidance in this area.

Last reviewed 8 February 2019

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