Building a hostile environment?

21 September 2015

The Home Office is making good on its promise to increase immigration inspections in the construction sector

The Home Office is making good on its promise to increase immigration inspections in the construction sector. This is part of its campaign to create ‘a hostile environment’ for anyone here illegally.

Immigration minister, James Brokenshire, had warned of a new round of checks, with construction companies being ‘hit from all angles’ if they are found to be employing anyone who does not have the right to work in the UK. These checks have now begun, with a number of building sites reporting visits from the Home Office in recent weeks.  The intensity of these visits is likely to escalate following the launch of “Operation Magnify” on 14 October 2015.

Officials have been asking for lots of personal data about anyone working on site, including agency workers and CIS contractors. These wide-ranging enquiries go beyond the Home Office’s normal remit and may presage a more joined up enforcement approach with other regulatory bodies.

Companies who are visited by the Home Office should consider the following points. 

  • Employers have a duty to prevent illegal working in the UK by people who are subject to immigration control. An employer who hires someone who does not have the right to work, may face a financial penalty and in some cases, prosecution. This can be avoided by carrying out a pre-employment right to work check. 
  • Liability only arises where an employment relationship exists. Consequently it does not arise if an individual is actually self-employed. If using agency workers or contractors, then strictly there is no need to complete a right to work check for them. 
  • Construction companies will wish to be careful to avoid any finding that their contractors or agency workers are really employees. If in doubt, it would be prudent to review legal and practical arrangements to check the reality does reflect your intentions.
  • It is in your interest to co-operate, within reason, with Home Office enquiries. While an initial visit may seem fairly low-key, failure to co-operate may lead to more heavy-handed enforcement activity and publicity. As a starting point, data may be provided for employees and an explanation given of the status of other individuals. 
  • To prevent reputational damage by ‘appearing’ to employ an illegal worker, it is prudent to review the terms of engagement with anyone who is supplying workers to you. Ensure the agency is required to carry out right to work checks and supply satisfactory evidence of this to you upon request. 
  • All Home Office officials should produce ID and carry business cards, even when in plain clothes. This ID may refer to ‘intelligence’ or ‘enforcement’. If presented with something that refers to the UK Border Agency (UKBA) you should make further enquiries, as the UKBA was officially abolished in 2013.
  • If your business employs migrant workers under a sponsor licence, then you have extra obligations to co-operate with the Home Office. Failure to do so may result in the suspension or even revocation of your licence. In these cases more is at stake and you may wish to seek legal advice to ensure you are doing everything necessary to protect your licence.

The content of this article is for general information only. If you would like advice on how to prepare for or respond to an inspection, please contact Clare Hedges or Janice Leggett in our immigration team, or speak to your usual contact in our construction and engineering team. Law covered as at September 2015.