Home Office Updates Guidance on Preventing Illegal Working
31 January 2019
The Home Office has updated its Code of Practice on Preventing Illegal Working. The Code of Practice sets out the prescribed checks that employers should conduct to avoid a civil penalty in the event of illegal working.
It replaces the Code issued in May 2014, and reflects the Immigration (Restriction on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018, which provides that employers may establish a statutory excuse against liability for an illegal working civil penalty by conducting an online right to work check using the Home Office Online Right to Work Checking Service.
With thanks to Daniel Barnett’s employment law bulletin for the update.
Illegal working often results in abusive and exploitative behaviour, the mistreatment of illegal migrant workers, tax evasion and illegal housing conditions. It can also undercut legitimate businesses and have an adverse impact on the employment of people who are in the UK lawfully.
As an employer, you have a responsibility to prevent illegal working in the UK by ensuring that your employees have the right to work here. The illegal working provisions of the Immigration, Asylum and Nationality Act 2006 (‘the Act’) came into force on 29 February 2008. Section 15 of the Act allows the Secretary of State to serve an employer with a notice requiring the payment of a penalty of a specified amount where they employ a person who is:
subject to immigration control; and
aged over 16; and
not allowed to carry out the work in question because either they have not been granted leave to enter or remain in the UK or because their leave to enter or remain in the UK:
o (i) is invalid;
o (ii) has ceased to have effect (meaning it no longer applies) whether by reason of curtailment, revocation, cancellation, passage of time or otherwise; or
o (iii) is subject to a condition preventing them from accepting the employment.
The Code of practice has been issued under section 19 of the Act to specify the factors to be considered by the Home Office in determining the amount of the civil penalty for employing an illegal worker. Separate guidance for employers sets out how to conduct right to work checks and how the Home Office administers the civil penalty scheme to prevent illegal working.
This Code updates the one issued in May 2014. It has been updated to reflect the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018, which provides that employers may establish a statutory excuse against liability for an illegal working civil penalty by conducting an online right to work check using the Home Office online right to work checking service.
Who should use this Code of practice?
This is a statutory Code. This means that it has been approved by the Secretary of State and laid before Parliament. The Code does not impose any legal duties on employers, nor is it an authoritative statement of the law; only the Courts and Employment Tribunals can provide that. However, the Code may be used as evidence in legal proceedings and Courts and Employment Tribunals must take account of any part of the Code which may be relevant. Home Office officials will also have regard to this Code when administering illegal working.