Challenging a civil penalty for an illegal worker

The Right to Work Scheme imposes a responsibility on all employers to prevent those without lawful immigration status from working in the UK.

Employers are expected to conduct a ‘Right to Work’ check on all employees in one of the three prescribed manners:

1. A manual, in-person right to work check;
2. A right to work check using Identity Document Validation Technology via the services of an Identity Service Provider; or
3. A Home Office online right to work check.

A properly conducted right to work check is the only way that employers can establish a statutory excuse against a civil penalty in the event that an employee is found to be illegally working.

More information on how to carry out right to work checks can be found here.

When and how might a civil penalty be imposed?

An employer will have breached the Right to Work Scheme if they are found to be employing a person who does not have permission to work or who is working in contravention of their immigration permission.

Following the breach, an employer may be served with a Civil Penalty Referral Notice informing them that consideration of liability for a civil penalty is underway. If the Home Office decides to impose a civil penalty, an employer will be served a Civil Penalty Notice.

The Home Office will allow an employer the opportunity to present further information and provide evidence of a statutory excuse. If this request for information is responded to within 10 days, this will be taken as active co-operation in the process and could lead to a reduction to the level of penalty.

If an employer has correctly conducted a right to work check, a statutory excuse will be established such that no liability for a civil penalty will arise.

However, if the Home Office considers that a statutory excuse has not been established, consideration will be given to the appropriate level of civil penalty.

What is the civil penalty amount?

There are different civil penalty amounts depending on whether an employer has breached the Right to Work scheme within the past three years. Employers may be fined:

• For first breaches, up to £45,000 per illegal worker.
• For repeat breaches, up to £60,000 per illegal worker.

However, the actual penalty amount imposed will depend on an employer’s history of compliance with right to work checks.

Are there any possible reductions and discounts?

The final penalty amount imposed will be determined according to whether an employer qualifies for reductions in the penalty amount by providing evidence that they have met the mitigating factors.

As with the civil penalty amounts, there are different mitigating factors for first and repeat breaches. These include:

• Whether the employer has already reported suspected illegal workers to the Home Office and received a Unique Reference Number.
• Whether the employer has actively co-operated with the Home Office.
• Whether the employer has effective right to work checking practices in place.

Where mitigating factors are found, penalty amounts could be decreased by £5,000 per illegal worker.

Each case will be considered based on the information provided.

The Right to Work Scheme also operates a Faster Payment Option (FPO) that provides employers with the opportunity to pay the penalty at a 30% reduction if full payment is made within 21 days. However, the FPO is only available for employers who have received a penalty for the first time.

Can I challenge a civil penalty?

Objecting to the penalty

Employers have 28 days from the due date specified within the Civil Penalty Notice to submit a written objection.

Objections must be submitted along with evidence supporting one or more of the following acceptable grounds for objection:

• The employer is not liable to pay the penalty (e.g. because an employer was incorrectly identified as the employer of the illegal worker);
• The employer has a statutory excuse because a prescribed right to work check was undertaken; or
• The level of penalty is too high.

Where the level of penalty is too high, this may be because the Home Office have calculated the penalty incorrectly, or the employer has evidence that they meet specified mitigating criteria that have not been taken into account.

An employer will receive an Objection Outcome Notice from the Home Office regardless of whether the penalty will be cancelled, reduced, or maintained.

Where an employer objects to the penalty before the deadline specified in the Civil Penalty Notice, they will continue to be eligible for the FPO (see above).

Appealing against the penalty

If an employer remains liable for a civil penalty even after a written objection has been submitted and determined, an appeal may be made to the County Court.

The appeal must be made within 28 days of the date specified on the Objection Outcome Notice, or the date specified on any new Civil Penalty Notice.

An employer may only appeal on the same grounds on which they could object to a penalty.

Can I pay by instalments?

An employer may request permission from the Home Office to pay a civil penalty by instalments over an agreed period, which is usually up to 24 months.

If requesting payment by instalments, full reasons for the inability to pay the full amount in one payment should be given.

Next steps

Our expert Immigration team are well-placed to advise assist both organisations and individuals who have received a civil penalty from the Home Office. We offer strategic support in preparing robust representations and navigating complex immigration enforcement challenges. Our experienced professionals can help review your circumstances to effectively challenge or mitigate penalties.

If you have been issued a civil penalty by the Home Office or need assistance with an ongoing immigration issue, please do not hesitate to contact our Immigration team.