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McGill & Co is a Scottish immigration law firm specialising in UK immigration, nationality and refugee law.

I received a Home Office Civil Penalty Notice – what should I do?

02 October 2018 Jack Freeland Business Immigration

The Home Office civil penalty scheme is used to ensure that employers are compliant with the immigration rules by conducting proper Right to Work checks to confirm that all employees have the correct permissions to work in the UK. Where businesses are found to be in breach of their duties under the immigration rules, they can expect to be issued with a Civil Penalty Notice by the Home Office. This article will examine the Civil Penalty Notice scheme and signpost what you can do if your business is liable for a civil penalty for employing illegal workers.

 UK Visas & Immigration (UKVI) published its latest quarterly report on 10 September 2018 showing the number of civil penalties for illegal workers that were found in the first quarter of 2018 (01 January – 31 March). The figures show that there were 637 illegal workers found at businesses across the UK during this period, resulting in a gross value of £7,645,000 worth of penalties issued by UKVI. Whilst these figures represent 36% decrease in the total number of workers found at businesses in the last quarter of 2017, the total value of these penalties is a stark reminder to employers that illegal working remains a central element of the government’s hostile environment policy.

What is a Civil Penalty Notice?

You will receive a Civil Penalty Notice if the Home Office has identified that you are liable for a civil penalty for employing illegal workers, contrary to section 15 of the Immigration, Asylum and Nationality Act 2006. The legislation applies equally to employers who ‘knowingly’ choose to ignore their obligations under the immigration rules and take on illegal migrants, as well as employers who ‘unknowingly’ hire illegal migrants due to not exercising due care, or because of flaws in their employment procedures.

The consequences of breaching the rules are grave. Those who ‘unknowingly’ employ illegal workers due to flaws such as failing to perform the correct Right to Work Checks are liable to receive a fine of up to £20,000 per illegal worker. Whilst employers who are found to have ‘knowingly’ employed an illegal worker or had ‘reasonable cause to believe’ the employee did not have a right to work in the UK, face an unlimited fine and up to five years imprisonment. They are also very likely to be downgraded on the list of sponsors, or have their licence revoked altogether.

What to do if you receive a Civil Penalty Notice?

Taking preventative measures it the most effective way to avoid falling foul of immigration breaches, but if you are facing a Civil Penalty Notice for illegal working you must give serious consideration to your options for appealing the civil penalty. Businesses have 28 days to pay the fine or to appeal the Home Office decision, so it is important to act quickly.

The first step in challenging a Civil Penalty Notice is making a formal objection to the Home Office by writing to the Secretary of State. The penalty can be reduced or withdrawn altogether at this stage if an employer has grounds for a challenge and evidence to support their case. The objection can be made on numerous grounds, including:

  • The illegal workers named in the Civil Penalty Notice are not employed by the organisation.
    • A business may, for example, dispute the employment of an individual because that person was working as an independent contractor.
  • The Home Office exceeded its statutory powers.
    • The Home Office may have obtained evidence unfairly or in excess of its statutory powers.
  • The Home Office did not take into account certain statutory mitigating factors such as:
    • Cooperation with the Home Office investigation
    • Having reasonable measures in place for compliance.
    • Number of offences previously committed by the employer.
  • You have a statutory excuse under Section 15 of the Immigration, Asylum and Nationality Act 2006.
    • Under Section 15(3) of the Act, an employer can be excused from paying the penalty if they can show that they have carried out the correct Right to Work checks. In addition, the organisation’s name will not be published by Immigration Enforcement which may prevent reputational damage. This is why it is important to have a robust compliance system in place.

If your written challenge is rejected by the Home Office, you can appeal this decision at the court within 28 days of the final Home Office decision. Whilst going to court may seem daunting for some, if your case is strong it may be disposed of by the Home Office before it reaches court if they respond favourably to a Pre-Action letter outlining the reasons why the employer should not have been issued with the notice.

Contact McGill & Co Immigration Solicitors Today

Given the potential financial and reputational impact that a civil penalty can impose on a business, it is always advisable that you seek legal assistance at the earliest stage possible. At McGill & Co our immigration solicitors are experienced in helping businesses navigate the compliance requirements for employers under the immigration rules, and have assisted many employers challenge their Civil Penalty Notice. We understand how important immigration issues are for our clients, and we always strive to provide comprehensive, efficient and superior advice.

If you would like assistance with your civil penalty contact us on 0131 228 2083 for our Edinburgh office, or on 0141 248 6552 for our Glasgow office to arrange to speak with one of our solicitors. Alternatively, fill out our online enquiry form and we will get back to you as soon as possible.

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