Business Law & Compliance

How easy is it for staff to become accidentally illegal?

6 min read

14 February 2018

Prime minister Theresa May has repeatedly confirmed her intention to create a hostile environment for illegal migrants. But whilst the word "illegal" might conjure up an image of clandestine entry, it’s surprisingly easy for a law-abiding individual to be labelled as such.

The government has recently endeavoured to ensure that illegal migrants cannot work, rent a property, open a bank account or even drive. This may seem reasonable where there have been attempts to evade UK immigration control, but if someone makes simple errors while applying the consequences can be extreme. This also impacts bosses employing someone illegally.

It could happen to you…

A business was recently caught out with one of its sponsored migrants’ Tier 2 extension applications when an administrative error was made by choosing the wrong job code. Generally, if a role’s duties change and it falls out of its original code, it needs to be advertised and the individual should apply for new Tier 2 leave (assuming there are no suitable candidates from the resident population).

The Home Office refused the application due to this error. By the time the refusal decision came back the individual’s previous leave to remain had expired.

Strictly, if the boss kept them on the team they would have been employing an illegal migrant. The safest approach, from a purely immigration perspective, would have been to dismiss the individual immediately. However, there are often clashes between immigration and employment law; when this business approached us, we fashioned a pragmatic solution so that our client suspended the individual without pay whilst we submitted a fresh application with the correct code, which was approved.

Another risk area is where a business changes hands and a Tier 2 migrant ends up working for an organisation which is not their sponsor. Immigration advice should be sought in any sale/ acquisition scenario as sponsored migrants could be impacted by the corporate transaction and end up inadvertently working illegally.

Consequences of being labelled “illegal” are far-ranging

Loss of employment – As outlined above, if an individual is unable to provide evidence of their right to work in the UK, employers generally need to dismiss the individual. If the employer continues to employ them, they risk a £20,000 civil penalty for employing an illegal worker. Since 2016 they may also face criminal sanctions for knowingly employing an individual without the right to work in the UK.

This criminal offence now also extends to employing an individual where the employer had “reasonable cause” to believe the individual did not have the right to work. The individual is also committing a criminal offence if they work without immigration permission and their earnings may be confiscated.

Loss of accommodation – Landlords have to carry out “right to rent” checks on all tenants, both at the beginning of a tenancy and at any extension stage. If an existing tenant does not pass, the landlord is required to report this to the Home Office and end the tenancy agreement.

Unable to drive in the UK – An individual’s UK driving licence can be revoked once the Home Office reports to the DVLA that they do not have the right to reside in the UK.

Bank account can be frozen – Since 2014, banks and building societies must check the immigration status of individuals opening a current account. In January 2018, these checks were extended and banks and building societies must now make quarterly checks on current account holders against a list of illegal migrants held by the authorities. The banks are advised on steps by the Home Office which can include freezing or closing accounts.

Practical steps

Take a proactive approach – Don’t wait for another right to work check to be required; liaise early with the individual to ensure they are making arrangements to extend their leave in the UK before their visa expiry date.

Consider whether your business could offer the employee any support on the immigration side to ensure that the immigration application is submitted correctly in the first place to reduce any risk of refusal.

Submit applications via the Premium Service Centre – This service costs an additional £590 on top of the usual application fee but means the individual attends at the Premium Service Centre in person to submit their application and, usually, obtains a decision the same day. If there is any problem with the application this may then give the option of re-submitting the application before the person’s current leave expires.

Comply with all sponsor obligations – If the business is non-compliant ans registered as a Tier 2 sponsor, it could risk losing its licence and its ability to sponsor Tier 2 migrants.

Putting into practice these practical tips and keeping on top of immigration issues can enable employers to minimise the risks to their business.

Jackie Penlington is senior associate at Stevens & Bolton LLP