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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.

Sanctions against illegal working

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 of up to £20,000 per illegal worker may be imposed if an employer negligently employs someone without the right to undertake the work for which they are employed.

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 5 years (or both).

Brexit Implications

  • From 1 January 2021 all foreign nationals (except Irish nationals) will require a visa to lawfully live and work in the UK.
  • EEA nationals living and working in the UK before 31 December 2020 can apply (if they have not already done so) under the EU Settlement Scheme for settled or pre-settled status. This will allow them to continue to live, work and study in the UK without the need to apply for a visa. The deadline for applying is 30 June 2021.
  • Employers of EEA and Swiss nationals will be able to rely on the EEA passport or ID card to confirm the person’s right to work in UK until 30 June 2021. After this, employers will no longer be able to accept an EEA or Swiss passport alone as evidence of a permanent right to work in the UK for new employees. Proof of immigration status under either the EU Settlement Scheme or the immigration system in place at the time will be required.
  • If you intend to employ EEA and/or Swiss workers after 1 January 2021 (and they have not gained settled or pre-settled status under the EU Settlement Scheme) for positions that are able to be sponsored, you will need a sponsor licence to do so.

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

Right to Work Checks

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:

  • Obtain the employee’s original identity documents. This could be a current passport or biometric residence permit (see HERE for Home Office guidance);
  • Check the documents are valid with the employee present;
  • Copy and keep the documents securely, recording the date of the check (and follow-up check if the document expires)

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.  

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 HERE).

There is also an online interactive tool which can be used to check which types of document give someone the right to work in the UK and what a right to work check involves for each of them (you can find this HERE). 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 or potential employee has made an application to UKVIS to remain in the UK beyond the expiry date of their current permission 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 HERE).

COVID-19 changes

Due to COVID-19 there are temporary changes to the way you can check documents. You can find guidance about the adjusted process HERE, in short:

  • Checks can now be carried out over video calls;
  • Job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals;
  • Employers should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.
  • If the worker has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme you can use the online right to work checking service while doing a video call - the applicant must give you permission to view their details.

IMM3

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.

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