If your business is found to be employing illegal immigrants, you face significant civil and potentially criminal sanctions. Immigration solicitor Anne Morris shares insight into the steps construction businesses can take to avoid falling foul of UK immigration law.

Over £11.5million in fines were issued to UK businesses for illegal working between October and December 2017. 624 UK businesses were fined and 990 illegal workers were identified.

These figures suggest employers are falling foul of their immigration compliance duties in their droves, and in doing so are creating a healthy income stream in fines for the Home Office.

Construction companies in particular attract Home Office attention due to the high numbers of foreign workers; 7% of the sector’s workforce are EU27 nationals and 3% are non-EU.

Immigration non-compliance remains an issue at both ends of the market. Smaller firms can struggle because of a lack of resource or lack of knowledge of the legislation. Whereas larger companies may have the resources, systems and policies in place to manage the immigration risks, but ensuring these are consistently implemented across all sites, employees and areas of their operations is challenging.

What does the law say?

Under the Immigration, Asylum and Nationality Act 2006 you may be liable for a civil penalty if you employ someone who does not have permission to be in the UK or undertake the work on offer. If you are found to be employing illegal immigrants, you may incur a fine of up to £20,000 per illegal worker.

Employers could also face a custodial sentence if they knew, or had reasonable cause to believe, that an employee was disqualified from employment by reason of their immigration status.

The term illegal immigrant applies to anyone who does not hold valid leave to enter or remain in the UK – regardless of how or when they entered, and if they had previously held lawful status. This may be due to visa curtailment, revocation, cancellation or expiry. It may also be because of a restriction preventing the person from performing the work in question.

How to avoid employing illegal immigrants 

As an employer, you can take measures to avoid a Home Office fine by carrying out right to work document checks on all prospective and, where necessary, existing employees. By doing this correctly and on a consistent basis, you will be able to challenge Home Office allegations of non-compliance.

A compliant approach to right to work requires you to:

• Obtain an original document, or combination of documents, in accordance with the Home Office approved list before an applicant can start work with you.
• Check the validity of the documentation in the presence of the applicant. If you are provided with a false document you will only face a penalty if it is reasonably apparent that the documentation checked was not genuine, did not rightfully belong to the holder or the work was not permitted.
• Copy the documentation electronically or in hardcopy. This should be in a format that cannot be manually altered, such as a jpeg/pdf document or photocopy. Make a contemporaneous record of the date you conducted the check. You should also keep a record of when any repeat checks will need to be made. Retain your copies and records for the duration of the individual’s employment, and for a further two years after they leave.

In some cases you may also need to verify the employee’s right to work with the Home Office Employer Checking Service. For example, where an employee has an immigration appeal pending a decision. The Home Office will provide you with a Positive Verification Notice to confirm that the applicant has permission to work. 

 Correct, consistent, compliant

For full compliance, document checks are expected to be an integral part of your business’s recruitment and onboarding processes to help avoid illegal working fines – and adding to the Home Office coffers.

Anne Morris is an immigration solicitor and Managing Director at UK immigration law firm DavidsonMorris. specialists in all areas of business immigration including right to work compliance, PBS licences and challenging civil penalties.