Legal Consequences of Employing Illegal Workers in the UK 

Ensuring you do not employ illegal workers can be a complex challenge for both employers. Employers may inadvertently find themselves in a legal minefield  if they fail to adhere to immigration and employment laws.  We’ll review the landscape around illegal employment and look at how the right to work check can alleviate any potential issues.

Who Are Illegal Workers? 

Defining Illegal Workers in UK Immigration Law 

In the context of UK immigration law, “illegal workers” refer to individuals that are not legally permitted to work within the United Kingdom. The reasons that they may be working illegally include:  

• Expired Visas: Individuals who have entered the UK with a valid visa but have allowed it to expire without renewing or extending it are considered illegal workers. Once a visa expires, the individual’s permission to work becomes void. 
• Unauthorised Entry: Those who enter the UK without the appropriate entry clearance or visa are typically not authorised to work. This includes individuals who entered the country illegally or as tourists but later seek employment. 
• Failed Asylum Seekers: Asylum seekers whose applications have been rejected and exhausted all appeal processes may no longer have the right to work in the UK. If they continue working without legal authorisation, they become illegal workers. 
• Student Visa Violations: International students who violate the terms of their student visas by working more hours than allowed during term time or engaging in prohibited types of work become illegal workers. 
• Overstayers: Individuals who remain in the UK beyond the duration specified in their visa, or those who entered as tourists but stayed for employment purposes, are categorised as illegal workers. 

Unintentional hiring of non-legal workers by employers 

Employers may unintentionally hire illegal workers for various reasons, often due to a lack of awareness or mistakes in their hiring processes. Reasons include: 

• Document Forgery: Individuals may provide fraudulent or altered documents that appear genuine, making it challenging for employers to detect their true immigration status. 
• Inadequate Verification: Employers may not have robust systems in place for verifying employees’ right to work documents, leading to oversight or incomplete checks. 
• Complex Immigration Rules: The intricacies of UK immigration law, including numerous visa categories and changing regulations, can make it challenging for employers to stay fully informed. 
• Lack of Training: Employers and HR personnel may not be adequately trained or informed about the correct procedures for conducting right to work checks. 
• False References: Individuals may provide false references or employment history to mask their immigration status, making it harder for employers to identify irregularities.

Why It’s a Legal Issue? 

Employers’ Legal Obligations to Verify Right to Work 

In the United Kingdom, employers have clear and unambiguous legal obligations to verify their employees’ right to work. These obligations are laid out in various pieces of legislation, including the Immigration, Asylum, and Nationality Act 2006. The key responsibilities of employers include: 

• Right to Work Checks: Employers are required to carry out thorough right to work checks on all prospective employees before employment commences. These checks involve verifying the authenticity and validity of an individual’s immigration status and the documents they present. 
• Preventing Illegal Employment: Employers must ensure that they do not employ individuals who do not have the right to work in the UK. This includes verifying the immigration status of employees and monitoring the expiration dates of relevant documents. 
• Document Retention: Employers are obligated to keep clear and accurate copies of records of right to work checks, incuding digital records.  

Employing illegal workers can lead to violations of both immigration and employment laws in the UK: 

• Immigration Law Violations: Employers who hire individuals without the right to work commit immigration law violations. These violations can result in civil penalties, criminal charges, and, in extreme cases, imprisonment for the responsible individuals within the organisation. 
• Employment Law Violations: Hiring individuals illegally can also breach employment laws, as these individuals are often denied fundamental employment rights, such as minimum wage, holiday entitlement, and workplace protections. Such practices can lead to employment tribunal claims and legal actions against employers. 

Legal Consequences for Employers  

Civil Penalties for Employing Illegal Workers 

Employers who employ individuals without the right to work in the UK can face significant civil penalties. These penalties are imposed by the Home Office and are intended to deter non-compliance. The specific penalties include: 

• First-Time Offenses: For a first-time offense of employing illegal workers, an employer can face a civil penalty of up to £20,000 for each illegal worker they have hired. 
• Repeat Offenses: If an employer is found to have repeatedly hired illegal workers, the penalties can escalate. The fine per illegal worker remains at up to £20,000, but the total amount can be substantial if multiple illegal workers are involved. 

Penalty Variations Based on the Number of Illegal Workers and Knowledge 

The penalties for employing illegal workers can vary based on the number of illegal workers employed and the level of knowledge or negligence on the part of the employer: 

• Number of Illegal Workers: The more illegal workers an employer hires, the higher the potential fines can be. Each illegal worker can result in a separate penalty, which can quickly accumulate if multiple workers are involved. 
• Knowledge and Intent: Penalties can also be influenced by the employer’s level of knowledge and intent. If an employer knowingly and intentionally hires illegal workers, the penalties may be more severe. However, even if an employer is unaware of an employee’s illegal status, they can still face penalties for failing to conduct proper right to work checks. 

Potential Criminal Charges and Imprisonment 

In cases of deliberate and serious non-compliance, employers can face criminal charges. Criminal charges are typically reserved for the most egregious violations of immigration and employment law. Potential criminal consequences include: 

• Criminal Charges: Employers who knowingly and intentionally hire illegal workers may be charged with offenses related to facilitating illegal immigration or conspiracy. 
• Imprisonment: Those convicted of serious offenses related to employing illegal workers may face imprisonment. The length of imprisonment can vary based on the severity of the offense and the specific circumstances. 

It’s important to note that while civil penalties are more common, criminal charges and imprisonment are reserved for cases of deliberate and repeated non-compliance or involvement in organised illegal employment schemes. 

Mitigation and Prevention – Avoid Unintentional Hiring of Illegal Workers 

Employers can take proactive measures to prevent unintentional hiring of illegal workers and maintain compliance with immigration laws by carrying out right to work checks.  

Establish Clear Hiring Policies:
Develop and implement clear and consistent hiring policies that emphasise the importance of verifying the right to work for all employees. Ensure that HR personnel and hiring managers are familiar with these policies and follow them rigorously. 

Educate Your Team:
Provide comprehensive training to HR personnel and hiring managers on right to work checks and immigration laws. Keep your team informed about changes in legislation and document verification techniques. 

Reporting Illegal Employment 

Reporting illegal employment plays a crucial role in upholding the integrity of immigration and employment laws in the UK. When individuals, including employees, report illegal employment practices, it enables government authorities to act against non-compliant employers. Here’s why reporting is essential: 

• Enforcement of the Law: Reporting helps immigration and employment enforcement agencies identify and investigate employers who hire illegal workers or engage in other unlawful employment practices. 
• Deterrence: Public awareness that illegal employment is reported and penalised serves as a deterrent to both employers and employees who may consider participating in such activities. 
• Protecting Legitimate Workers: Reporting safeguards the rights and interests of legitimate workers by ensuring that they are not unfairly disadvantaged by employers who engage in illegal employment practices. 

Whistleblower Protections for Employees 

In the UK, employees who report illegal employment practices are protected by whistleblower laws, which shield them from retaliation or adverse actions by their employers. These protections are essential to encourage individuals to come forward with concerns. Key aspects of whistleblower protections include: 

• Legal Safeguards: Whistleblower protections are enshrined in various laws, including the Public Interest Disclosure Act 1998. These laws make it unlawful for employers to take retaliatory actions against employees who report illegal activities or wrongdoing within the organisation. 
• Confidential Reporting: Whistleblowers are often encouraged to report concerns through confidential channels, such as dedicated hotlines or internal reporting mechanisms. This protects their identity and reduces the risk of workplace retaliation. 
• Protection from Unfair Treatment: Whistleblower protections extend to safeguarding employees from unfair treatment, including dismissal, demotion, harassment, or discrimination, because of their reporting. 
• Legal Recourse: Employees who believe they have suffered retaliation for whistleblowing can seek legal recourse through employment tribunals. Remedies may include compensation and reinstatement. 

Understanding and complying with UK immigration laws and regulations regarding the employment of foreign nationals is of paramount importance for both employers and employees. Compliance with immigration laws is not merely a legal obligation; it is a moral imperative that upholds the rights and dignity of all workers. Employers play a vital role in ensuring that the workplace is fair, lawful, and inclusive for individuals from diverse backgrounds and nationalities.