What Are UK Immigration Civil Penalties and What to do

As a sponsor of overseas workers, if you receive a UK Home Office immigration civil penalty, you should act fast as you may receive a fine of up to £20,000 for each worker without permission to work here. By responding within the deadline provided and providing evidence that you carried out the necessary checks, you can avoid a Home Office civil penalty. In this article, we will explain what is meant by an immigration civil penalty, the fines and consequences, the mitigating factors that can prevent or reduce a fine, and how to appeal.

What is a civil penalty under the UK immigration act?

A UK immigration civil penalty is a fine levied by the Home Office because a sponsor of overseas workers has broken the law on preventing illegal working in the UK. There are 3 steps that will determine whether a civil penalty is issued:

1. Breach: If the Home Office has grounds to believe that you have one or more employees without permission to work in the UK, they will ask you to demonstrate you have complied with the law.
2. Referral: If the Home Office is not satisfied with the explanation given, they will refer the matter for further consideration and will issue you with a ‘referral notice’. The referral notice advises you that they are looking into the matter and the risk of a civil penalty.
3. Decision: If the Home Office concludes that you have employed a worker without the necessary permission, they will issue a ‘civil penalty notice’ confirming that you are liable, the amount to be paid and when, and the process to object to the penalty. In this case, you will have 28 days to object and provide evidence that you carried out the necessary checks or that the individual was not working for you.

If the Home Office concludes there is insufficient evidence that you have a worker without permission, they may issue a warning notice or a no-action notice.

You can object on the basis that:

• you are not liable to pay the fine
• you have a statutory excuse (i.e. you carried out right-to-work checks as required), or
• the level of penalty is too high (if the Home Office made a mistake when calculating the fine).

If you have received a civil penalty notice, you must respond with the necessary explanation and evidence within 28 days. Our immigration solicitors understand how to deal with the Home Office in such matters and can promptly handle the objection and appeal process for you. Call us on 020 3744 2797 or complete our enquiry form.

UK immigration civil penalty fines and consequences

If the Home Office has reason to believe you have employed a worker without the necessary immigration permission, the fine you will receive depends on a range of factors, including:

• Whether you have employed workers without immigration permission in the past.
• Whether you usually comply with your right to work, check duties.
• Whether you took action promptly once you were aware that your worker did not have the necessary permission.

As such, the Home Office will increase or decrease the level of the UK immigration civil penalty charge based on the circumstances and the history of compliance of the employer. If you can show that there are mitigating factors, as explained below, the fine may be further reduced. A fine may also be reduced by 30% if it is paid in full within 21 days of it being due.

It is important to understand that while you may receive a fine, your business may be affected in other ways. The Home Office may decide to downgrade or even have your sponsor licence suspended if they have concerns about your sponsorship compliance. Furthermore, they may refuse an application for sponsor licence renewal if you have a track record of non-compliance with illegal working rules. They may also impose a 12-month cooling-off period which means you will need to wait for a year before you can reapply.

Furthermore, if it can be proven that you knew (or had reasonable cause to believe) a worker did not have the required immigration permission, you risk receiving a criminal sanction. This may also result in the disqualification of a company director.

Mitigating factors for a UK immigration civil penalty

As explained above, where a sponsor can show there are mitigating factors, it may be possible to avoid or further reduce the financial penalty levied by the Home Office. These mitigating factors include the extent to which you:

• Carried out the required UK right to work check (Full, partial, or no checks) – if full, there may be no penalty.
• Co-operated with the Home Office regarding the matter.
• Have been warned or had penalties in the past: penalties for first and second occasions are lower than for the third or subsequent occasion.
• Have reported the matter to the Home Office: if you have reported suspicions about the right to work of one or more of your employees, the fine levied may be reduced.

How to appeal immigration civil penalties

If you disagree with the decision with the Home Office’s decision to issue you with a civil penalty, you can object within 28 days. Having considered your objection, the Home Office will then issue you with one of the following:

• A Warning Notice
• A new UK Immigration Civil Penalty Notice (this may include a larger penalty)
• An Objection Outcome Notice (Penalty maintained)
• An Objection Outcome Notice (Penalty reduced)
• An Objection Outcome Notice (Penalty cancelled)

Once your objection has been determined by the Home Office (or you have not received a decision within 28 days), you can appeal to a civil court by completing and submitting Form N161¹. You will also need to serve your appeal papers to the Secretary of State for the Home Department.

If you decide to appeal, the court may:

• allow your appeal and cancel the fine, or
• allow your appeal and reduce the fine, or
• dismiss the appeal.

How can Reiss Edwards help?

As specialists in business immigration law, we can advise and represent you if you have received a UK immigration civil penalty. Our immigration solicitors can:

• Deal with the Home Office if you have received a warning notice or are being fined by immigration enforcement.
• Handle the appeal process on your behalf if you have received a civil penalty under the UK immigration act.
• Explain and provide evidence of any mitigating factors to the Home Office.
• Prevent illegal working by carrying out mock UK immigration compliance audits, and bespoke HR training.
• Provide immigration guidance on employing overseas workers UK.

References

¹ GOV.UK: Form N161