What to do if you have been fined by the Home Office for Immigration Compliance reasons
An organisation will be issued a civil penalty notice, informing them that they have employed someone who did not have the rights to work in the UK; thereby breaching section 15 of the Immigration, Asylum and Nationality Act 2006.
This also applies to employers who have failed to comply with their sponsorship duties and obligations. Or businesses who unintentionally hired a person without full rights to work as a result of an unforeseen breakdown in their onboarding process.
If you have received a fine for hiring illegal workers, you are faced with a choice to either accept and pay the fine or challenge the penalty. As an employer who has just received a notice, your next steps are very important. You will normally have just 28 days to either pay the fine or to send back an objection form; in which case you have decided to appeal the decision.
It is important to note that the UKVI encourages companies to accept fines rather than going through the lengthy process of appeal. Not only do they allow for a payment plan to be arranged, but businesses are also offered a 30% discount if they make full payments within 21 days of receiving the notice.
If you, however, choose to object the civil penalty and appeal, as expected, you will have to provide full evidence and preferably legal argument as to why you are not liable for any civil penalty.
The choice of whether to accept or appeal is a tricky one. Settling, for some, means that they have accepted that they have done wrong. It may also mean that you are parting away with your hard-earned money, something most businesses will not enjoy doing. Objecting, however, may either get the fine overturned or increased if you lose.
It is therefore important that you seek professional and legal advice from experienced business immigration and sponsor licence lawyers before attempting to object and appeal. Your immigration solicitors must be able to justify the grounds for appeal as well as justifying the fact that should the Home Office increase your fine as a result of the appeal process, it would be unreasonable and unnecessary.
What do organisations gain from challenging a civil penalty?
- Cancellation of fines - Civil penalties from the Home Office may be as high as £20,000 per illegal worker. If you succeed in your appeal, you might as well have saved yourself £20,000.
- Reputation hit - Organisations face the prospect of damaging their public reputation should it go public that they were hiring illegal workers. It is subtly interpreted as promoting or supporting illegal immigration.
- Negative effects on future applications - Accepting a fine has far reaching implications for the company. For example, if you have been fined and accepted liabilities for a civil penalty. You have technically suggested to the Home Office that your company is a threat to immigration control; which is a general ground for refusal.
It may therefore important for employers to consider the strength of objecting and appealing a fine before accepting it.
Deciding whether to pay the civil penalty or appeal
If the evidence against you is overwhelming and indisputable, it may be best to pay the fine, learn from the mistake(s) and implement control measures. It is also advisable to seek advice from expert business immigration advisers on the best practical control measure to adopt given your particular situation.
Accepting to pay, even though the best option (in some instances) will now put your company under the Home Office watch. You can expect unannounced visits by UKVI compliance officers at any time. It is therefore important that you fix the compliance issues and get your control measures right.
Building a defence for an appeal
Your defence may be built on but not limited to the following grounds: -
- Lack or insufficient proof of offence: - Here you are arguing that the Home Office has failed to provide sufficient evidence to prove that you have employed the worker(s) illegally.
- Completed Due Diligence: - As a general rule, you are not liable if you have followed the normal procedure and have complied the required document as advised in the Home Office' guidance.
- Statutory Mitigating factors: - Here you are arguing that the fine is too high in relation to the mitigating factors that were not properly taken into consideration.
- Home Office exceeding its powers: - This argument may be used when you have reasons to believe that the way and manner in which the Home Office had obtained its evidence was unfair and in a manner that implied abuse or excessive use of its statutory powers.
How we can help
At Reiss Edwards, we have a team of expert business immigration solicitors and sponsor licence lawyers with full understanding and practical know-how of the entire sponsor licence process and compliance and audit process. Contact us today for a free assessment on 02037442797 or send us an email on email@example.com.
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