On 23 January 2024, the Home Office published the sixth version of the statutory Code of Practice on preventing illegal working: Right to Work Scheme for employers, which sets out the prescribed checks that employers should conduct to avoid a civil penalty in the event of illegal working. This follows publication of the draft revised Code of Practice. The new Code replaces the version issued in March 2022 and will come into force on 13 February 2024.
The Code of Practice is issued under s 19(2)(a) Immigration, Asylum and Nationality Act 2006 (IAN Act 2006) and explains the actions an employer can take to avoid liability for a civil penalty under the IAN Act 2006 if their employee is found to be working illegally. S 15 IAN Act 2006 prohibits an employer from employing a person who does not have the right to work in the UK. The Code of Practice sets out how the Home Office determines whether an employer is liable for a civil penalty, as well as the factors it considers in determining the fine amount. An employer will only be liable for a civil penalty where the employment commenced on or after 29 February 2008.
Key changes to the Code include increases to the maximum civil penalty from £15,000 to £45,000 per illegal worker for a first breach, with the maximum penalty for repeat breaches rising to £60,000 per illegal worker (currently £20,000). The increase to the absolute maximum penalty of £60,000 is implemented by the Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2024, which was made on 23 January 2024 and which also comes into force on 13 February 2024.
The Code of Practice should be applied to all right to work checks carried out from 13 February 2024, including where a follow-up check is required.
The Code has been issued alongside Guidance: Right to work checks – an employer's guide, which provides advice to employers on how to conduct right to work checks and how the Home Office administers the civil penalty scheme. A further statutory Code of Practice for employers: Avoiding discrimination while preventing illegal working published in March 2022 gives guidance for employers on operating right to work checks in a way that is non-discriminatory and is in accordance with statutory equalities duties.
First published on the Employment News Service on 24 January 2024.
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