Civil penalty notices can be issued for the employment of illegal workers.
Under Section 21 of the Immigration, Asylum and Nationality Act 2006, it is an offence to employ a worker who cannot be an employee due to immigration status. That relates to a person who has not obtained permission to come to the UK or to remain here.
The burden is on the employer to be able to show they have reason to believe a worker has the right to remain or come to the UK, failing which an offence can be committed.
The fines for being in breach of Section 21 can be extensive. At up to £60,000 per illegal worker as set out in The Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2024 this is no small change and can cause company cash flow problems. It is also possible that such conduct by an employer can give rise to director disqualification proceedings which can be initiated without any liquidation of the company.
Civil Penalty Notice
An employer who is unable to show that they have complied with the prescribed requirements set out in the Code of practice on preventing illegal working (“the Code Of Practice”) which arises from Section 19 of the Immigration, Asylum and Nationality Act 2006 can be given a civil penaly notice under Section 15 of the Immigration, Asylum and Nationality Act 2006.
The notice must state:
- Why the Secretary of State considers a penalty notice should be issued.
- The amount, at least 28 days to pay and by what mechanism.
- Explain the employer may object and appeal to Court against it after an objection has been lodged first.
- State how the Secretary of State can enforce the penalty.
Enforcement Of A Civil Recovery Penalty
Under Section 18 of the Immigration, Asylum and Nationality Act 2006, the penalty is treated as an order of the county court in England and Wales.
Action taken to recover the penalty is treated for the purposes of Section 98 of the Courts Act 2003 as recorded in the register of judgments and orders as if it were a country court judgment. This could have an impact on an employer’s reputation and credit rating.
Objecting To A Civil Penalty Notice
It is possible to object to a civil penalty notice on the grounds that the employer is:
- Not liable.
- Has complied with the Code Of Practice
- The penalty is too high which may include arguments against it in mitigation.
Appealing Against A Civil Penalty Notice
If you have objected to a civil penalty notice it is possible to appeal within 28 days of the relevant date.
The basis of an appeal can be that the penalty:
- is wrongly lodged
- too high
- the employer ought to be excused
The Court on such an application may determine the appeal is:
- dismissed
- correct and allowed
- reduce the penalty
You can however only appeal if you have first raised an objection with the Secretary of State and the penalty notice has been determined:
- by increasing the penalty
- reduced the penalty
- taken no action on reducing the penalty
- or not within the prescribed period informed the employer of a decision
