Expert advice: How to challenge illegal working penalties from the Home Office


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By Anne Moris
Immigration lawyer

17 Jul 2018

Pharmacies face tough penalties if found to be in breach of their immigration compliance duties. But, as immigration lawyer Anne Morris explains, pharmacies may be able to find grounds to challenge penalties.

 

All UK pharmacies are required by law to meet certain immigration compliance duties. They must carry out document checks on all employees, confirming their right to work in the UK. In addition, pharmacies employing pharmacists from outside the EU will have to comply with their duties as a sponsor licence holder.

 

Where the Home Office alleges a pharmacy has failed in its sponsor licence duties, they have the power to downgrade, suspend or even revoke the licence. This will affect the business’ ability to hire non-EEA pharmacists, resulting in the curtailment of Tier 2 visa employees’ leave to remain.

 

If the Home Office alleges an employer has failed to perform the right to work checks properly, they can issue a civil penalty for illegal employment for up to £20,000 per illegal worker – with no cap on the number of fines that can be issued to any one employer.

 

In the last quarter of 2017, over £11.5m in fines were issued to UK businesses for illegal working. During that period, 624 UK businesses were fined and 990 illegal workers were found.

 

Businesses are evidently struggling to meet their immigration compliance duties, and the Home Office is poised to fine those that are in breach.

 

Pharmacy businesses under Home Office scrutiny

 

Pharmacies are a target for immigration enforcement due to the high numbers of foreign workers. Smaller and independent businesses may struggle to meet their compliance duties due to lack of resources or knowledge of the legislation.

 

Larger pharmacies, on the other hand, may have resources, systems and policies in place to manage the risk of immigration compliance, but ensuring these are consistently implemented is a huge practical challenge.

 

While the spotlight is on pharmacy management to ensure compliance with the immigration rules, the Home Office may sometimes fail to follow protocol – incorrect paperwork and permission – when investigating employers.

 

If your pharmacy business is facing Home Office penalty for immigration non-compliance, and you can show valid grounds for complaint or that the Home Office has failed to follow procedures correctly, you may be able to have your penalty cancelled.

 

How to challenge Home Office sanctions

 

For pharmacies facing Home Office sanctions – either as a civil penalty, a restriction on your sponsor licence or both – your next steps will be critical in determining the outcome of the matter.

 

You will need to act quickly to understand the nature of the allegations, to identify whether you have grounds to challenge and to respond to the Home Office by the deadline.

 

Each case will need to be looked at on its own facts and circumstances. Has there been a factual error being relied on in the grounds that can be challenged with supporting evidence? Can you show that the action is disproportionate to the breach? Revoking a sponsorship licence and losing key personnel will for most businesses have a devastating impact on operations. This should only be a course of action where the breach is significantly severe to justify the revocation.

 

Another area for challenge is to look at the Home Office itself and how it has conducted its investigation. Fines are being successfully cancelled where businesses can show that Home Office has failed to meet its own standards during an investigation and inspection.

 

To monitor employers, the Home Office commonly uses site inspections (or ‘immigration raids’), often unannounced, to inspect personnel records and to interview staff.

 

If they find evidence the business does not have the necessary paperwork for its workers, and as a result workers are being unlawfully employed, they can issue penalties.

 

Site inspections can be hugely stressful, unpleasant and invasive for employers. After the ordeal of the inspection, and concerned about the gravity of the allegations and the tight timeframes involved, it’s understandable that many business owners just pay the fine.

 

But the civil penalty could be an unnecessary and avoidable cost if the Home Office did not have the correct paperwork or have not followed the correct procedure:

 

  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.

 

  1. Officers’ conduct

Did the conduct of Home Office officials during the inspection fall below the required standards?

 

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

 

  1. 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.

 

  1. 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, for example 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.

 

On the basis of any of these issues, or others that have been identified in your case, if your business can effectively represent to the Home Office that they have failed to meet the required standards during the investigation, you should expect the penalty to be cancelled.

 

Conclusion

 

With changes to UK immigration rules affecting EU citizens on the horizon, immigration enforcement is going to become a greater concern for businesses post-Brexit.

 

The potential implications of a civil penalty and impact on your sponsor licence are significant and pharmacies should consider all options if facing immigration enforcement action.

 

Anne Morris is managing director of business immigration solicitors, DavidsonMorris, specialists in all areas of UK immigration including sponsor licences, HR compliance, Home Office applications and challenging civil penalties.

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