Have you been issued with an Illegal Penalty Notice?

The enactment of the Immigration, Asylum and Nationality Act 2006 (IANA 2006) gives the Home Office the power to issue penalty notices against employers of foreign nationals who are working in the UK illegally.

If you have been served with an illegal penalty notice, call now to speak with one of our specialist immigration solicitor’s who will advise you on the options available to you.

Illegal workers consist of:

• students with expired visas or students working more hours than they’re permitted to work;
• people who work on a visitor’s visa; and
• any persons not permitted to work whilst in the UK.

IANA 2006 follows a staged process:

1. The Home Office issues a notice of potential liability, which enacts formal civil penalty.
2. The employer is allowed to object to the penalty through an internal review.
3. If unsuccessful, the employer can appeal to the county court against the penalty if he or she can demonstrate that section 15 has not been breached. If section 15 has been breached but the statutory excuses applied, or the level of penalty imposed is too high.

How to avoid liability under a Civil Penalty Notice

If you have been issued with a civil penalty notice you will be given 28 days in which to respond, with an option to appeal.

To avoid such liabilities, employers should follow a three step process to ensure that prospective employees have the right to work in the UK:

• obtain specific documents which establish the individual’s right to work;
• check the validity of those documents; and
• copy the appropriate documentation.

 

If after the process the employer is found liable, a civil penalty of £20,000 for each illegal worker found working for the employer is served. You can also receive a custodial sentence for up to 2 years if you are found to have employed illegal workers intentionally. There is also the commercial consequences to consider, as the Immigration Enforcement team now have the powers to publish business details of those found to be employing illegal workers, to act as a deterrent.

If you do not pay the penalty notice or comply with appeal deadlines you will be subject to enforcement action against you. It is also important to note that if you have civil penalties pending against you, this can have an adverse effect on your immigration status or any future immigration applications you apply for.

To avoid such penalties the employer must prove:

• that they were not employing illegal workers; or
• that sufficient and reasonable steps were taken to check that the worker’s ability to work.

Defending against a Civil Penalty Notice action

There are two main types of defences that an employer can use against the Penalty notice:

Complete defences

The Immigration, Asylum and Nationality Act 2006 allows for a statutory excuse whereby the employer will be relieved of paying the imposed penalty notice if he or she can show full compliance of documentation checks which are required prior to commencement of a foreign national employee, as set out in the code of practice. If your complete defence is accepted you will be issued with a ‘No Action Notice’.

Partial defences

There are instances where the fine can be reduced up to £5000 per illegal worker if it can be shown that certain steps were taken by the employer. There are a number of mitigating steps, including;

• Whether the employer co-operated with the Home Office’s investigation.
• The employer took reasonable steps to check the status of his or her employee.

How can Vincent Solicitors Help?

We have a specialist team of  Corporate Immigration Solicitors who can advise on the best strategy to adopt to avoid liability under the Civil Penalty Notice. Please get in touch on the number provided below for a free initial consultation.

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