Illegal working after a visa is curtailed: whose fault is it?

It is well known that some employers knowingly hire workers without the right to work, however, this article does not focus on these employers. What is less widely known is that there are innocent employers who hire workers who do have the right to work, however, at some point after the commencement of employment, the Home Office may curtail (cancel) the visa, making the employee an illegal worker effective immediately.

In this article we will highlight that the existing visa curtailment framework leaves innocent organisations needlessly exposed. This is because there are currently no mechanisms in place to notify an employer that their employee (who previously had the right to work) has lost that status and is therefore working unlawfully within their organisation. 

The problem

Picture this. You own a family-run business and employ five workers, including an individual we will call Sebastian Thomas. 

Sebastian has the right to work in the UK for five years. Two years after you employ Sebastian, the Home Office curtails his visa at which point he automatically loses the right to work in the UK. Unaware of this material change, you continue to employ Sebastian and are now potentially liable to pay a fine of up to £60,000 for employing an illegal worker.

With the exception of relying on Sebastian’s good nature to tell the truth, there are currently no systems in place to notify an organisation that an employee’s visa has been curtailed. Whilst the Home Office and the employee are both aware of the curtailment, the employer– who may face a substantial financial penalty, disruption to business operations and reputational damage – is unaware.

Now, if you conducted a right to work check in line with the Home Office’s guidance prior to the commencement of employment, you may establish a statutory excuse (defence) against the Civil Penalty. However, if the check was not conducted strictly in accordance with the guidance, or as commonly occurs, you misplace the evidence to show that the necessary check was completed, you will not establish a statutory excuse - you will remain liable for continuing to employ Sebastian after the curtailment of his visa…even though you had no idea! 

It is worth pointing out that in the case of Sebastian, at the time employment commenced he did have the right to work in the UK and a right to work check would have confirmed the same. Providing evidence that the check was carried out prior to the commencement of employment would therefore make no material difference to this outcome. i.e., whether a check was carried out or not, Sebastian would still have continued to work after the curtailment of his visa – illegal working would still have occurred – this is the issue. 

Failing to communicate this material change to a worker’s immigration position places employers in an unknowingly culpable and commercially vulnerable position, making employers often overlooked victims in Civil Penalty cases. 

The solution

The solution is simple. Once the Home Office has curtailed a visa, they should notify the employer that the employee no longer has the right to work in the UK via their established communications with HMRC. The employer should then be given a grace period to arrange the worker’s termination.

This change has the potential to significantly reduce illegal working following the curtailment of a visa, empower employers by keeping them informed and prevent the fatality of businesses unable to withstand the impact of the penalty. 

After all, the aim is to prevent illegal working, not collect millions in fines…right?