when the Home Office is have failing to do the same ?

COMMON HOME OFFICE ERRORS If your business has received a civil penalty for illegal working , you will have a strict timeframe of 20 working days to respond to the Home Office .

Your options will be to either : n Pay the fine , ideally negotiating a discount n Challenge for the fine to be reduced n Challenge for the fine to be cancelled You will need to act quickly to understand the nature of the allegations and to identify whether you have grounds to challenge the fine , either to have it reduced or cancelled altogether .

Each case will need to be looked at on its own facts and circumstances but some of the common areas of Home Office errors to look for include : 1 . Unlawful entry Did immigration enforcement officials have the relevant and lawful permission and paperwork to enter your premises to detain illegal immigrants ?

For example , a warrant to enter premises under the Licensing Act should not be used to detain illegal immigrants .

2 . Officers ’ conduct Did the conduct of Home Office officials during the inspection fell below the required standards ?

For example , were any non- English speaking individuals interviewed with a translator present ?

3 . Misapplied rules Has the Home Office has misapplied or misinterpreted the rules when making their decision to impose a fine ?

For example , any unlawful arrests of foreign individuals during a raid could amount to racial discrimination .

4 . Insufficient evidence Does the Home Office have insufficient evidence to support their allegations against your business ?

For example , the Home Office will need to provide evidence that the individual was employed by your business . If you are not the employer of an alleged illegal worker , if they were agency staff or employed by a third party , you are not under a duty to verify their right to work and you will not be liable for a fine .

If you are able to show the Home Office has failed in their duties , you could have grounds to challenge the fine .

AVOIDING HOME OFFICE FINES There are steps that businesses can take to help achieve compliance , and to improve prospects of a successful challenge in the event of any Home Office allegations .

Ensure your right to work document checks remain compliant and in line with the latest Home Office guidelines . They are subject to frequent change , which creates a risk where businesses are not staying up to date for example about the types of documents that are acceptable and the length of time records must be kept and where the status of employees with

If you can prove you carried out the required document checks of the employee ’ s documents prior to employing them and took reasonable steps to check the employee ’ s legality , you may be able to rely on the ‘ statutory excuse ’ to challenge the fine

time-limited right to work are not checked regularly .

If you can prove you carried out the required document checks of the employee ’ s documents prior to employing them and took reasonable steps to check the employee ’ s legality , you may be able to rely on the ‘ statutory excuse ’ to challenge the fine . You would need to have as evidence all relevant documents from the time you employed the individual .

If you can show mitigating circumstances , you may be able to negotiate a reduced fine . For example , where you can demonstrate through your HR records general right to work compliance , and this issue was a result of a one-off oversight . If the basis of a fine is that the employee presented forged documents , you may be able to challenge the fine on the basis that you took all reasonable steps to meet your compliance duties .

If you are subject to a site inspection , it is helpful to take contemporaneous notes about the conduct of the officials , this can be valuable evidence , particularly in instances of unlawful or discriminatory behaviour .

CONCLUSION While the Home Office continues to fail to follow its own rules , it pays for businesses to look at all of their options if facing a civil penalty for illegal employment . Taking advice at the preliminary penalty stage can help you determine quickly how best to proceed and which course of action will result in minimal financial loss for your business .

Anne Morris is managing director of business immigration solicitors , DavidsonMorris , specialists in all areas of UK immigration including challenging civil penalties for illegal working .