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Wed September 19 2018

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Home Office errors give construction companies grounds to appeal illegal working penalties

23 Aug Construction firms face tough penalties if found to be in breach of their immigration compliance duties. But, as immigration solicitor Anne Morris explains, the Home Office itself has a track record of failing to follow correct procedures, giving employers grounds to challenge fines.

Immigration enforcers from the Home Office make a site visit
Immigration enforcers from the Home Office make a site visit

UK construction companies are required by law to meet certain immigration compliance duties. They must carry out document checks on all employees, confirming their right to work in the UK.

If the Home Office finds the company has failed to perform its right to work document checks correctly, they can issue a civil penalty for illegal employment for up to £20,000 per illegal worker. There is no cap on the number of fines that can be issued to any one employer.

In the last quarter of 2017, over £11.5m in fines were issued to UK businesses for illegal working. During that period, 624 UK businesses were fined and 990 illegal workers were found. At these levels, it seems that either employers are struggling in great numbers to meet their immigration compliance duties or the Home Office appears to be taking a trigger-happy approach to issuing fines – or perhaps a combination of both.

Due to the high numbers of foreign workers in construction, the sector remains a primary target for immigration enforcement. For the Home Office, both ends of the market offer low-hanging fruit and potentially lucrative fines. Smaller firms often struggle with compliance due to a lack of resources or lack of knowledge of the legislation and the duties placed on them. Larger companies on the other hand may have the resources, systems and policies in place to manage the risk of immigration compliance, but ensuring these are consistently implemented across all sites and areas of their operations can be extremely challenging.  

Yet many employers are generally unaware of the full extent of their right to appeal a fine for illegal working.

If your business is facing allegations of illegal working and has been issued a civil penalty, you may be able to have your penalty cancelled if you can show valid grounds for complaint against the allegations.

How to challenge Home Office sanctions

If your company has been issued a civil penalty, your next steps will be critical in determining the outcome of the matter. You will have a limited timeframe of 20 working days in which to determine you course of action and respond to the Home Office. You will need to look at the detail provided in the notification letter and ask some key questions. For example:

1. What are the exact grounds for breach and are these factually correct? Is there a factual error being relied on that can be challenged with supporting evidence?

2. Is the level of penalty proportionate to the alleged breach(es)?

3. Has the Home Office conducted itself and its investigations to the required standards? Common areas of Home Office failings we see include:

  • Insufficient evidence: The Home Office must have insufficient evidence to support their allegations against your business. For example, were the illegal workers employed by your company or were they subcontractors? If you are not the employer of an alleged illegal worker, if they were agency staff or employed by a third party, you are not under a duty to verify their right to work and you will not be liable for a fine.
  • Unlawful entry: Immigration enforcement officials must have held relevant and lawful permission and paperwork to enter and inspect the site and to detain illegal immigrants.
  • Officers’ conduct: Home Office officials must follow the correct procedures during site inspections. For example, were any non-English speaking individuals interviewed with a translator present?
  • Misapplied rules: Has the Home Office has misapplied or misinterpreted the rules when making their decision to impose a fine? For example, any unlawful arrests of foreign individuals during a raid could amount to racial discrimination.

On the basis of any of these issues, or others that may be identified with your case, if your business can effectively represent to the Home Office that they have failed to meet the required standards during the investigation, you should expect the penalty to be cancelled.

Operation Magnify?

Where is Operation Magnify in all this? Operation Magnify had initially been launched by the government to address the root causes of illegal employment deemed endemic across the construction industry. Momentum has however evidently stalled, leaving employers facing the same risks and issues with immigration non-compliance and susceptible to enforcement action.

But a civil penalty could be an unnecessary and avoidable cost if you can show that the Home Office itself has not followed the correct procedures in investigating your company, in its decision-making and in issuing the fine. Given the potential implications of a civil penalty, companies should consider all options to determine quickly which course of action will result in minimal financial loss and reputational detriment for your business.

About the author: Anne Morris is managing director of business immigration solicitors DavidsonMorris, specialists in all areas of UK immigration including challenging civil penalties

MPU

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