The relevant statutory instrument implementing the new maximum civil penalty was made by Parliament on 23 January 2023 and comes into effect on 13 February 2024.

From the same date, a new Code of practice on preventing illegal working: Right to work scheme for employers will also come into effect. This code of practice sets out:

• How an employer may establish a statutory excuse against liability for an illegal working civil penalty;
• An overview of the process under which the civil penalty regime is administered;
• How liability is determined and the penalty amount is calculated for a first breach and a repeat breach of the right to work scheme.

Any employer issued with a penalty notice on or after 13 February 2024 will be subject to the penalty calculations in the new code of practice unless the illegal working identified in the notice ceased on or before 12 February 2024. This includes a maximum £45,000 civil penalty being imposed for a first breach of the scheme and a maximum of £60,000 per illegal worker for repeat breaches.

This means that unless the employment began and ended before 13 February 2024, an employer of an illegal worker will be subject to the higher penalty. If the employer has a completely compliant right to work check history for the employee, this should provide a statutory excuse against the penalty unless there is also evidence the employer knew or should have known they were employing an illegal worker. However, it is important to be aware that seemingly minor deviations from a compliant right to work check will mean that a statutory excuse is not available. It is therefore very important to have compliant right to work checks on file for all employees.

Employers should also note that the civil penalty enforcement action would usually start at the maximum level and only reduce if set mitigating factors can be established.

If an employer seeks to rely on a compliant right to work check carried out on or before 12 February 2024 when asserting a statutory excuse against liability for a civil penalty, this will be considered in accordance with the code of practice that was in effect at the time the right to work check was made.

As mentioned in our earlier article here, we would suggest that employers consider undertaking the following actions to minimise the risks of being liable for civil penalties and being subject to compliance action due to illegal working:

• Carrying out periodic internal and/or external audits of right to work check documentation and processes;
• Providing ongoing training to staff involved in completing right to work checks;
• Taking specialist immigration and/or employment law advice where right to work queries arise; and
• Taking swift advice where potential illegal working is identified.

Right to work check requirements can feel complicated because there are different requirements for different types of right to work. Additionally, how the checks can be made has changed since the pandemic when certain allowances were made. Add to this that the use of IDSPs often leads to misunderstandings about which checks they can legitimately complete on behalf of employers and it is actually quite difficult to always ensure full compliance. We have a handy right to work guide which provides a breakdown of these to aid employers as well as offering training and mock audits.

If you have queries about this development or require assistance with right to work compliance, please get in touch with a member of our Immigration Team.