Adam Kyte and James Lamont are partners specializing in immigration at Charles Russell Speechlys
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 foreigners who were working il legally Published statistics show that in the first quarter of 2023, the Home Office carried out 1,303 enforcement visits, which represents an increase of 57% compared to the first quarter of 2022, with an alleged doubling of arrests since of the same period. [citation].
What does this mean for the construction industry?
The sector was the target of a series of high-profile raids in 2019, as the Home Office cracked down on UK construction sites, including widely reported raids in London and Brighton. After a dip in enforcement activities due to the pandemic, this year’s increase in activity indicates that the Home Office has re-prioritized its efforts to crack down on workers and employers suspected of working illegally.
Readers may recall the Home Office’s Operation Magnify, which took place in the second half of the 2010s. At the time, construction had been identified as a high-risk sector with a prevalence of illegal work .
Following Operation Magnify, it was recognized that the construction sector was making progress in the area of preventing illegal work. Key to this was engagement with the Home Office by senior level organisations. However, a decrease in enforcement during the pandemic has meant that many companies have become complacent about right-to-work controls.
What are the risks for the construction industry?
Businesses that are employing someone illegally without carrying out a proper right to work check can face a civil penalty of up to £20,000 per illegal worker. The Home Office raids mentioned above could therefore lead to fines of over £500,000. In the most serious cases there is the risk of a criminal sentence of up to five years for those involved in hiring an illegal worker and an unlimited fine.
It is an offense to know or have “reasonable cause to believe” (meaning you should have known) that you are employing an illegal worker. Among other sanctions, you can close the business itself, disqualify the directors and seize the earnings. Any company currently operating as a sponsor under the points-based immigration system may also have their license revoked and any legitimate sponsored workers lose their right to work and reside in the UK.
A visit to the Ministry of the Interior is possible at any time and often without notice. Raids can be triggered by a number of factors, such as where the Home Office targets a particular area, a particular sector or even following a tip-off about workers at a location or organisation. Raids can also be conducted as a “fishing” exercise. The Home Office may conduct a routine compliance audit of sponsor license holders, either as a desk audit or in person.
What can you do to mitigate these risks?
Think about:
- Strong compliance policies and procedures. They can protect the company and its top executives.
- Implementation of a right to work policy for employees. Conducting a right-to-work check on an employee before starting work establishes a legal “excuse” if that person is later found to be working illegally.
- Be careful with contractors. There may be a risk that the Home Office will regard them as employees.
- When using agency workers, do you know if the agency has done right-to-work checks? Is this included in your agreement with the agency?
When employing contractors and agency workers, it is important that employment advice is sought and policies are put in place to avoid the employment risk considered 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 responsible.
What can you do if the Home Office surprises you with an enforcement visit or audit?
A company’s first priority should be to obtain 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 advisers can contact the Home Office, but be aware that the Home Office usually has the legal right to access and to obstruct may be a crime. Home Office licensed sponsors also have a duty to co-operate with the Home Office as a condition of their sponsor licence.
