Published Home Office Code of Practice on Preventing Illegal Working

Further to the update we published in December 2023 which reported on the draft code and gave guidance on the step-by-step approach of the Home Office in issuing penalties, we have now had the chance to review the finalised code which is set to come into force from 13 February 2024. The new penalties – up to £60,000 per illegal worker – will apply from this date unless the illegal working ceased on or before 12 February 2024.

The code highlights the importance of having valid and compliant right to work checks on file for all employees. The financial penalties are in addition to it being a criminal offence to employ an individual where an employer is aware or has reasonable cause to believe the worker has no right to work in the UK.

For Sponsor Licence holders, any breach of right to work legislation will almost certainly result in penalties being imposed by the Home Office – including revocation or suspension of the licence, which will affect an employer’s ability to sponsor or retain such workers.

What should employers do now?

Employers should review their right to work checking processes and procedures to ensure that they are carrying out the correct checks, and properly evidencing that checks have been done – see the Home Office Guidance on this topic.

Employers should ensure that right to work checks are conducted prior to employment starting – employers should also review and keep a record of employees with visa expiry dates. Employers are increasingly able to conduct checks online, either through the free Home Office online checking service, or using Identification Document Validation Technology (IDVT) through a government certified Identity Service Provider (IDSP).

We recommend training staff responsible for completing right to work checks and conducting regular internal and external audits to monitor compliance. If we can assist with training of staff or mock right to work audits –as well as mock Home Office audits involving Sponsor Licence requirements – please let us know.

Civil penalties can be avoided entirely if an employer has evidence of a proper right to work check therefore the importance of doing this properly cannot be overstated. If an employer recognises that illegal working may have been identified, we recommend taking legal advice as soon as possible.

We will keep you updated on this subject, including news about our Breakfast Briefing on the topic scheduled for April. In the meantime,  if we can help with any immigration advice or ensuring your workforce is deployed legally, please get in touch.