When to appeal a civil penalty for illegal working
In the last quarter of 2017 alone, the Home Office issued over £11.5million in civil penalty fines to UK businesses for illegal working. But, as immigration expert Anne Morris explains, the Home Office doesn’t always get it right - so it’s worth business owners looking at their options to appeal the fine.
Employers across all sectors and industries can be targeted by Home Office immigration enforcement with unannounced site inspections.
During an inspection, Home Office officials can attend a business’ premises without prior warning to request access to personnel records and to interview staff. They are looking to verify the business is complying with its Right to Work duties and that all employees are lawfully employed.
If as a result of the inspection, the Home Office alleges the employer has breached its immigration compliance duties and is employing workers illegally, they can fine the organisation up to £20,000 per illegal worker. Business owners could also face criminal prosecution.
Businesses fighting back
Smaller and independent businesses are easy pickings for the Home Office.
A site inspection can be a hugely stressful and unpleasant experience, and can result in lost trade if the business is forced to close while the inspection takes place.
After the ordeal of the inspection, it’s understandable that business owners may want to avoid further dealings with the Home Office, and concerned about the gravity of the allegations, the size of the fine and the tight timeframes, they simply pay the fine to get back to running their business.
But the civil penalty could be an unnecessary and avoidable cost - because the Home Office often gets it wrong.
More and more businesses are exercising their right to appeal a civil penalty for illegal working, where they can show valid grounds for complaint.
The Home Office representatives may not have followed procedures correctly when conducting the site inspection. They may have misapplied or misinterpreted the rules when making their decision. Their case may lack sufficient evidence.
It’s a matter of questioning whether the Home Office is justified in its actions and decision-making in issuing the fine.
Case study: Independent restaurant defeats £30,000 fine
Mogul Indian in Greenwich, London, is a family-owned restaurant that has been trading for over 20 years. The restaurant is situated on a busy high street, and employs 10 individuals.
The business had had no previous issues with the Home Office, nor any history of immigration non-compliance.
It came as a huge shock to the Mogul team when Home Office officials attended the restaurant unannounced to carry out an immigration inspection. It was a Friday evening in the run up Christmas, meaning the restaurant had to close during one of its busiest times.
After attending the restaurant, the Home Office made two allegations of illegal working and issued a civil penalty for £30,000.
Mogul’s owner, Pushvinder Dale, came to us for advice on what to do next: whether to pay the fine, or challenge it.
We identified a number of grounds for complaint. For example, we discovered through our own investigations that the Home Office representatives had entered the premises on a warrant issued under The Licensing Act (relating to the provision of alcohol by food establishments), when the real purpose of the visit was to detain illegal immigrants.
On the basis of this, a number of other arguments and our supporting evidence, we lodged an appeal to the Home Office on behalf of Mogul.
The fine was cancelled in full.
Pushvinder Dale of Mogul Restaurant, Greenwich said: “We’re a small, hard-working family-run restaurant, and we refused to have our business’s name tarnished unfairly.
“After the initial shock of the inspection and being issued with the fine, we decided to take legal advice on our options. We could have just paid the fine, but I’m so pleased and relieved we pushed back and didn’t just accept what the Home Office was alleging and how they went about the inspection.
“Now we can move on with our name cleared and without the crippling financial hit.”
Avoiding Home Office scrutiny: Advice for business owners
Site inspections are a common tactic for immigration enforcement – the Home Office can and does turn up on your doorstep at any time.
What can owners do to get their immigration compliance in order?
- Carrying out the prescribed Right to Work checks – if you are compliant, you will be able to rely on a ‘statutory excuse’ to cancel or reduce a civil penalty for illegal working.
- Responding to the Home Office’s communications – providing further information where requested and meeting all deadlines is also essential in establishing a statutory excuse to have the penalty cancelled or reduced.
- Keeping a record of the conduct of the officials present at any site inspection – this is important evidence particularly in instances of unlawful or discriminatory behaviour. The Home Office generally cancels penalties where such issues are shown to have arisen.
Business owners should not be deterred from asserting their right to challenge a Home Office decision.
If you have received a civil penalty, timing will be crucial since you only have a limited window in which to respond to the Home Office.
Take advice at the preliminary penalty stage to determine quickly how best to proceed and which course of action will result in minimal financial loss for your business.
DavidsonMorris specialises in business immigration. We assist companies with PBS Licences, compliance, visa applications and general advice regarding all aspects of UK immigration law.