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Every employer in the UK has a responsibility to prevent illegal working.

It is unlawful to employ an individual who does not have the right to work in the UK or who is working in breach of their conditions of stay in the UK.

An employer needs to carry out certain checks, before an individual commences employment, and to keep a record of the checks it has carried out.

The checks must be carried out before an individual starts working for you. 

To avoid any potential discrimination claims, you must undertake document checks for all workers, irrespective of whether you know them to be British and / or EEA nationals.

If there are no restrictions on an individual’s right to work, then you do not need to undertake further checks during the course of employment.

If the individual is subject to restrictions and / or the document they present has an expiry date, you must make a note of this date and undertake a new document check on or before the relevant date in the future.  You must retain documents during the course of each individuals’ employment and for 2 years after they have stopped working for you.

Under the relevant legislation, an employer who employs illegal workers, may be liable to a civil penalty or commit a criminal offence:

  • A civil penalty may be imposed if an employer negligently employs someone without the right to undertake the work for which they are employed.   There is a sliding scale of penalties which takes into account an employer’s compliance record and mitigating factors. For a first breach in a 3-year period, the starting penalty is £15,000 per illegal worker. For a second or subsequent breach, the starting point is £20,000 per illegal worker.
  • A criminal offence will be committed if an employer knowingly employs an individual who does not have the right to undertake the work for which they are employed.  On summary conviction, an employer may receive an unlimited fine or imprisonment of up to 2 years (or both).

Avoiding Liability for a civil penalty

An employer is excused from paying a civil penalty (known as The “statutory excuse”) if it can show that it has complied with any prescribed requirements in relation to the employment of an individual.
Right to work checks can be achieved by undertaking a series of specified steps.

UK Visas and Immigration (UKVIS) has published a checklist explaining the types of documents that are acceptable for checking an employee's right to work and how long the check is valid for (see https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/378926/employers_right_to_work_checklist_november_2014.pdf)

There are different types of documents that an individual may present dependent on whether they are, or are not, subject to immigration control.   For example, a British Citizen is able to rely on an expired passport whereas a non-EEA national who is subject to immigration control must provide you with a copy of a current passport (i.e. it must be valid).  Certain documents are not acceptable such as a UK driver’s licence or a National Insurance card.  You can check which documents are acceptable by clicking on the links above.  The employer must check the validity of the original documents and satisfy itself that the individual is the person named in them.

If you employ students, you need to check the working time restrictions on their visa and you will need to obtain a print-out of the semester timetable from the institution as some students are able to work full-time during their holiday periods.

Where an employee / potential employee has made an application to UKVIS to remain in the UK or provides a copy of a Certificate of Application (or if you are in doubt as to whether the individual is eligible to work), you need to carry out an additional check by using the Employer Checking Service (see https://www.gov.uk/employee-immigration-employment-status).

IMM 3

Disclaimer: This note does not contain a full statement of the law and it does not constitute legal advice. Please seek legal advice if you have any questions about the information set out above.

Date of publication: June 2016

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