It has been described by the Home Office as "part of the biggest immigration shake up for forty years." What is it? A new system of civil penalties for employing illegal workers which comes into force on 29 February. As Matthew Smith, Employment Partner at Morgan Cole solicitors, Cardiff explains "It is the employer who has responsibility for ensuring that anyone they employ has the legal right to work in the UK so it is essential that all employers familiarise themselves with the new rules coming into force next month. Otherwise, the consequences could prove costly."

In the coming weeks, we can expect to see a great deal of publicity about the prevention of illegal working as the government launches its campaign publicising the details of how the new rules will operate. As the Immigration Minister Liam Byrne says, "Illegal working attracts illegal migrants and undercuts British wages. The message is clear for employers: we will not tolerate illegal working".

The adverse publicity from illegal working was recently illustrated by the Home Office itself because it had employed an illegal worker. It transpired that a security guard who had been working on reception at the Home Office for more than a year had no right to work in the UK. Before that was the announcement that around 5,000 illegal immigrants had been wrongly cleared to work as security staff by the Security Industry Authority (which was set up by the Home Office in 2004).

It is important not to be complacent and to think that your own stringent recruitment procedures would not allow such a situation to arise in your organisation. But what about people you take on through third parties such as contractors? That’s what happened with the Metropolitan Police when it discovered that some individuals it had employed through a contractor were in fact suspected illegal workers.

Under the new rules, employers who negligently hire illegal workers could face a maximum fine of £10,000 for each illegal worker found at a business unless they can establish a "statutory excuse" against payment of a penalty. If employers are found to have knowingly hired illegal workers, that is a criminal offence punishable with an unlimited fine and/or up to two years in prison.

Guidance for employers on the prevention of illegal working has just been issued by the Border and Immigration Agency (BIA) as well as a Code of Practice which  provides details of how the level of a fine will be determined. There will be a sliding scale with minimum and maximum penalties but the actual amount will be decided by the BIA on a case-by-case basis. The amount of the penalty will depend on a number of factors: the nature of the document checks conducted by the employer, the number of offences committed by the employer in the past three years and the extent of the employer’s co-operation with the BIA. If an employer reports his suspicion to the BIA about an employee’s entitlement to work in the UK, the amount of the penalty might be reduced. The Code also contains a series of useful flowcharts which set out how the level of the penalty may be increased or reduced as well as some practical case studies. For more information on how to comply with the legislation, take a look at www.bia.homeoffice.gov.uk/employingmigrants or contact one of the employment team at Morgan Cole.

Finally, it is important to remember that the BIA carry out regular enforcement operations against illegal working: there were 5,200 such operations in 2006, resulting in the removal of more than 22,000 people from the UK.