Construct.law - Autumn 2023
Home Office breaks record with crackdown on illegal working
By Adam Kyte & James Lamont
The Home Office has increased its enforcement activity with 159 enforcement visits in one day on 15 June 2023, deploying more than 300 immigration officers and resulting in the arrest of 105 foreign nationals working illegally. Published statistics show that in Q1 2023 the Home Office conducted 1,303 enforcement visits, representing a 57% increase on Q1 2022, with a claimed doubling of arrests since the same period [citation].
What does this mean for the construction sector?
The sector was targeted in a series of high-profile raids in 2019, when the Home Office took action against construction sites around the UK, including widely reported raids in London and Brighton. Following a dip in enforcement activities due to the pandemic, this year’s increased activity indicates that the Home Office has reprioritised its efforts to take action against workers and employers suspected of illegal working.
Readers may recall the Home Office’s Operation Magnify, which took place in the latter half of the 2010s. Construction had been identified at the time as a high-risk sector with a prevalence of illegal working.
Following Operation Magnify the construction sector was recognised as making progress in the field of preventing illegal working. Key to this was engagement with the Home Office by organisations at a senior level. However, a decline in enforcement action during the pandemic has resulted in many businesses becoming complacent on right to work checks.
What are the risks for the construction sector?
Companies found to be employing someone illegally without having undertaken a compliant right to work check may face a civil penalty of up to £20,000 per illegal worker. The Home Office raids referred to above could therefore lead to fines of over £500,000. In more serious cases there is the risk of a criminal conviction for up to five years for the individuals involved in hiring an illegal worker and an unlimited fine.
It is a criminal offence to know or have “cause to reasonably believe” (ie you should have known) that you are employing an illegal worker. Among other penalties the business itself may be closed, directors disqualified and earnings seized. Any business currently operating as a sponsor under the points-based immigration system may also see their licence revoked and any legitimate, sponsored workers losing their right to work and reside in the UK.
A Home Office visit is possible at any time and often without notice. Raids can by triggered by a range of factors, such as where the Home Office is targeting a particular area, a certain sector or even following a tip-off about workers at a location or organisation. Raids may also be undertaken as a “fishing” exercise. The Home Office might undertake a routine compliance audit on sponsor licence holding entities, either as a desktop audit or in person.
What can you do to mitigate these risks?
Think about:
- Robust compliance policies and procedures. They can protect the business and its senior executives.
- Implementing a compliant right to work policy for employees. Conducting a compliant right to work check on an employee before they start work establishes a legal “excuse” if that person is later found to be working illegally.
- Be careful with contractors. There may be a risk of the Home Office deeming them to be employees.
- Where utilising agency workers, do you know if the agency has conducted right to work checks? Is this covered in your agreement with the agency?
When engaging contractors and agency workers it is important that employment advice is sought and policies put in place to avoid the risk of deemed employment by the Home Office. The nature of this relationship may affect who is responsible for carrying out right to work checks on these workers and who is liable.
What can you do if the Home Office surprises you with an enforcement visit or audit?
A company’s first priority should be to get as much information as possible about the visit and its purpose. Get legal advice as soon as possible, and where possible try to delay the visit until your legal advisors can liaise with the Home Office, but keep in mind the Home Office usually has a legal right to gain access and to obstruct could be an offence. Home Office licenced sponsors also have a duty to cooperate with the Home Office as a condition of their sponsor licence.
Article originally appeared on Construction News
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