Three years on from the launch of Operation Magnify, UK immigration solicitor Anne Morris discusses the current status of illegal working and immigration compliance for UK construction companies.
Operation Magnify was announced by the UK government in 2015 as a Home Office campaign targeting employers suspected of using undocumented migrant workers in three ‘high risk’ sectors, which included the construction industry.
Construction was considered high risk for illegal working due in large part to the significant number of foreign workers in the industry.
Three years on, migrants continue to play a crucial role in construction, with the supply of domestic workers persistently falling short of the industry’s demand. According to the most recent ONS figures, 7% of construction workers in the UK are EU27 nationals and 3% are non-EU. The number of migrant workers alone in the industry creates immigration compliance risks even for law-abiding construction companies duties who may, through reason of scale, be unwittingly employing undocumented workers.
Through Operation Magnify, the government sought to raise awareness and catalyse a sense of urgency among construction businesses as to their legal duties in ensuring their workforce – both employees and contractors – are documented and lawfully employed. More than this, the government also looked to address wider issues of national security, to ensure that all workers – particularly those operating on so-called ‘sensitive sites’ such as government land – had been subject to identification checks.
Under the initiative, the Home Office contacted construction businesses, requesting data about their current and previous employees and contractors, and carrying out immigration raids on construction sites throughout the UK.
A failure of duty?
Construction companies, as with all UK employers, are required by law to perform document checks on their workers, confirming their right to work in the UK.
If the Home Office finds the company has failed to perform its right to work document checks correctly, whether knowingly or not, they can issue a civil penalty for illegal employment for up to £20,000 per illegal worker, with no cap on the number of fines that can be issued to any one employer.
If deemed to be employing an undocumented worker knowingly, this is a criminal offence punishable with up to two years in prison. In addition, there are the risks of business interruption and reputation damage and business interruption where for example the site is closed to allow immigration enforcement officers conduct their investigations.
UK construction & migrant workers
Construction faces particular challenges in checking that workers have the right to work due largely to the prolific use of subcontractors and agency workers. In addition, smaller projects can be carried out on a less formal basis, with workers brought in briefly and paid cash-in-hand.
Immigration law requires a migrant’s ‘main sponsor’, a company registered as such with the Home Office, to conduct right to work checks. This has created a tendency in the construction industry where companies higher up the supply chain, such as a Main Contractor or the client commissioning the project, do not conduct checks on employees who are on their building site but not employed directly. This tendency is exacerbated by construction being a low profit margin and highly time-pressured business.
However, failing to check could lead your business to fall foul of the law. This is because UK immigration rules still require companies to demonstrate that they are satisfied that the workers in their supply chain have the legal right to work.
UKVI continues to conduct ‘unspecified visits’ to sites – surprise inspections where immigration officers under warrant can ask to see employers’ records and require workers themselves to provide evidence of their right to work.
It is essential, though, that construction companies carry out reasonable checks to ensure that migrants have the right to work. Companies must also be able to show that they conduct such checks. In cases where a worker’s visa has expired, the company must show that it is taking steps to rectify the situation, for example by renewing the visa. So again, good record keeping is a must.
While the noise around Operation Magnify may have quietened, possibly signifying a downgrade in Home Office priority, construction companies should be mindful thayt the government could very well announce changes to immigration rules on the back of the initiative tomorrow.
For the time being, immigration compliance duties on employers remain as they stand, meaning construction companies must ensure all those that they work with have the legal right to work in the UK.
It is difficult to say conclusively if lessons have been learned and the industry has improved its position on compliance since Magnify – although Home Office civil penalty figures continue to suggest high numbers of UK employers across all sectors are struggling to meet their duties.
With changes to UK immigration rules in respect of EU citizens on the horizon, we expect employer right to work checks to continue to be relied on by government as the first line in ensuring all workers have the correct documentation, keeping employer compliance firmly under the Home Office spotlight.
Anne Morris is an immigration lawyer and managing director at UK immigration law firm DavidsonMorris.