On 3 May 2019, two days after MPs referred the Home Office to the Equality and Human Rights Commission over the Windrush scandal, the consultation on the UK's Immigration Rules was closed.
The Law Commission has been warned by the Bar Council of England & Wales that the UK could face another Windrush scandal unless the Immigration Rules are urgently reformed.
Complex and difficult to follow
This is not the first time that the Immigration Rules have been criticised for being overly complex, piecemeal and in need of reform.
Since the Immigration Act 1971 there have been numerous amendments to the rules; largely implemented in reaction to current affairs by various governments. This has resulted in a set of rules that are illogically structured, poorly integrated with one another, and incomprehensible to those attempting to navigate them.
Lawyers and judges alike have commented on their complexity, with judge David Lloyd-Jones stating in the Supreme Court that “the structure of both the primary and secondary legislation in this field has reached such a degree of complexity that there is an urgent need to make the law and procedure clear and comprehensible”.
How do the complex rules affect businesses?
All employers in the UK have a duty to prevent illegal working, meaning that all UK businesses should carry out right to work checks before employing individuals, in line with Home Office guidance.
The complexity of the Immigration Rules often leads to ambiguity in relation to individuals’ rights to reside (and work) in the UK, particularly where immigration applications or appeals are outstanding. This means that not all situations lend themselves to the 'tick-box' exercise of completing a right to work check.
As a result, the risks posed to employers are twofold.
Firstly, failing to obtain documents prescribed by the Home Office as acceptable evidence of a right to work, leaves businesses vulnerable to risks of civil penalties. Fines of up to £20,000 per illegal worker can be issued, along with criminal sanctions. Businesses found to have employed an illegal worker are also published on the Home Office's 'name and shame' webpage.
While caution should be exercised when it comes to checking individuals’ right to work statuses, businesses may also potentially face discrimination claims if they refuse to employ someone on the basis of their nationality. Such claims could lead to substantial compensation being awarded to job applicants, not to mention the reputational damage that can be caused.
Employers are therefore expected to perfect a balancing act that means they are not being discriminatory but are still adhering to the Home Office rules on right to work checks.
What should employers do to support their workers?
Communication is key. Employers are encouraged to work with current and prospective employees to understand their immigration status, with a view to obtaining the necessary documents to protect the business from sanctions.
In complex situations that do not appear to fit neatly into the Home Office right to work checklist and/or guidance, employers should seek specialist legal advice in relation to the individual in question's situation. Doing so could avoid substantial fines and damage to your business’ reputation.
Laura Godfrey is a solicitor at Ashfords
