Better, stronger, faster: The civil penalty scheme rebuilt

October 15, 2013

Earlier this month we highlighted the recent introduction of the Immigration Bill and the proposed changes to the current civil penalty scheme to prevent the employment of illegal workers. We had reported that the Home Office intends to ‘strengthen and simplify the existing civil penalty scheme’ against businesses they consider to be “rogue employers” and to rebuild and improve the effectiveness of the penalty scheme in order to ensure employers are more able and eager to comply with the law, by essentially rendering any non-compliance as utterly inexcusable and financially detrimental.

The government has now released the response to their proposals having consulted a number of businesses and trade groups in the UK. The majority of proposals to change the civil penalty scheme were met positively, with only one proposal to scrap warning letters for first time flouters being received pejoratively. Indeed, one of the main concerns with some businesses appeared to be the way in which the simplifying of the scheme would likely erode any distinction between deliberately “rogue employers” and those who were genuinely mistaken or simply confused regarding their compliance.

Another concern throughout the proposed changes was the foreseeable impact felt by small businesses that may run foul of the scheme. This was due, not only to the potential effects of removing such preliminary cautions as warning letters but also to the removal of mitigating self remedies, such as partial checks. Furthermore, to strengthen the penalty, the Home Office proposes to double both the starting point of any first breach to £15,000 and the maximum levy for any subsequent breaches to £20,000 from the standard £10,000. As a result, there exists a genuine concern for smaller businesses over the considerable financial impact any mistaken non-compliance could incur.

Yet, the Home Office seems resolute in insisting that such measures are necessary and indeed ultimately beneficial to all legitimate businesses, small or large, who would otherwise be undercut and outmatched by exploitative “rogue employers”. Indeed, they have pledged that such proposals are essential in order to effectively increase the ‘reach and the range’ of enforcement operations against such exploitation.

Nonetheless, the burden will ultimately remain on the shoulders of employers who will still be expected to enforce essential checks to establish their employees’ right to work. Given this fact, the Home Office is popularly proposing to reduce the number of acceptable documents and checks by making the Biometric Residence Permit visa (BRP) the main acceptable documentation to prove an individual’s right to work. This, coupled with the Home Office’s proposed follow-up checks on expired visas rather than the previous model of superfluous annual blanket checks, appear to be steps in the right direction in regards to simplifying employers’ compliance.

Indeed, the consensus from the majority of businesses consulted over the scheme’s proposals seems to be a resoundingly positive one. Hence, albeit on paper, the Home Office has managed to strike a keen balance between the strengthening of penalties against “rogue employers”, while simultaneously unburdening legitimate businesses, striving to remain scrupulously compliant.

If you have any questions or queries about the changes to UK immigration rules please contact us or call 0207 0012121.