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Right to work checks and preventing illegal working

All UK employers have to comply with the law on preventing illegal working – not doing so means facing penalties and other repercussions that could seriously damage the reputation and success of your business. Here’s our guide for employers on carrying out right to work checks and preventing illegal working.

The law on illegal working

All UK employers have to comply with the law on illegal working. The law is contained in:

The law says that employers must verify that all employees, regardless of their nationality, have a right to work in the UK. The Immigration Act was updated in 2016. New sanctions on illegal working were introduced as well as additional penalties for failure to comply with the law on illegal working.

The legislation to prevent illegal working is not retrospective. That means employers are not required to conduct right to work checks in respect of employees who have been continuously employed by them from prior to the 29 February 2008.

What is illegal working?

Illegal working is defined as an individual working when they do not have a legal right to do so. UK employers who employ workers under a written, verbal or implied contract of employment or contract of service or apprenticeship must comply with the illegal working legislation contained in the Immigration and Nationality Act 2006, section 24B of the Immigration Act 1971 and schedule 6 of the Immigration, Asylum and Nationality Act 2016. 

Who does the illegal working legislation apply to?

The illegal working legislation applies to all UK employers and their employees, whatever the employee’s nationality. Under the legislation a UK employer is under a duty to prevent illegal working and to check that an employee has a right to work in the UK. This duty applies to checking all employees whether they are British citizens, have settled status under the EU Settlement Scheme or whether the employee is already known to the employer, such as a family member or friend.

Who has a right to work in the UK?

Business immigration solicitors advise that the right to work in the UK is based on immigration status. For example, a British citizen has a right to work. Others who have a right to work in the UK include:

  • EU nationals or EEA citizens or Swiss citizens with pre-settled status or settled status under the EU Settlement Scheme
  • Those with indefinite leave to remain
  • Those who have secured a work visa, such as the skilled worker visa or the intra company transfer visa or the graduate visa
  • Those who are in the UK on a non-work visa but their visa conditions allow them to carry out some work, for example, those who secure entry clearance on a student visa or a dependant visa

The right to work can be non-time limited. For example, if the employee is a British citizen or has indefinite leave to remain in the UK. The right to work is time limited if the employee has limited entry clearance.

For more information on recruiting skilled migrant workers read:

EU nationals and the right to work

Many UK employers and EU nationals are uncertain of the right to work checks needed for EU nationals following the end of free movement on the 31 December 2020 and the closure of the EU Settlement Scheme on the 30 June 2021. Prior to the end of the Brexit transition period evidence of EU nationality was sufficient to pass the right to work check. Now a worker may either be an EU national with settled status or an EU national who is subject to immigration control. To assist in clarifying the need for right to work checks on EU national employees the Home Office has produced a guide on how to prove your right to work: EU, EEA and Swiss citizens

Right to work checks for Croatian nationals

Until July 2018 Croatian nationals were subject to worker restrictions and required worker authorisation from the Home Office. However, since 1 July 2018 Croatian nationals have not been subject to worker restrictions and therefore can now establish their right to work in the same way as any other worker who is subject to UK immigration controls.

Right to work checks for contractors

Contractors should carry out right to work checks on their employees. Businesses who regularly use a contracted workforce often prefer to check that the contractors have carried out right to work checks on their employees, this is because of the disruption and reputational damage that could arise from losing all or part of a contractor workforce if the Home Office were to investigate and uncover illegal workers.

Right to work checks for existing employees

Special rules apply on right to work checks for existing employees. If an employee’s right to work is time-limited because of the terms of their visa, an employer must conduct a follow-up check shortly before the time limit expires. Failure to do so places an employer in breach of illegal working legislation.

What is a right to work check?

To comply with illegal working legislation, a right to work check must be conducted by an employer on any prospective employee prior to the recruit commencing employment. It is therefore essential that the date and time of right to work checks are recorded by HR staff undertaking the right to work check as evidence of compliance with the law.

Employers can carry out the right to work check manually or online. The online right to work check can be accessed on the government website.

If the right to work check can't be conducted manually or online a company can use the Home Office online Employer Checking Service. If an employer is found to have employed an illegal worker and they can demonstrate that they carried out the manual or online right to work check or used the Employer Checking Service in accordance with the code of practice, the employer will have a statutory excuse to either avoid or reduce the civil penalty for employing an illegal worker.

What is the illegal working statutory excuse?

If an employer conducts right to work checks in accordance with the government code of practice they have a ‘statutory excuse’ or defence against liability for a civil penalty. This can be used in the event that the employer is later found to be employing someone who does not have the right to work in the UK.

The statutory excuse allows the employer to be excused from a civil penalty and avoid fines for employing illegal workers. Alternatively, the amount of the fine or nature of the penalty could be reduced.

Your company will not have a statutory excuse if:

  • You can't prove that you carried out a right to work check before the employee commenced work. The right to work check can be conducted on the first day of employment.
  • You employed a worker in circumstances where it was reasonably apparent that the worker is not the holder of the documentation supplied as part of the manual right to work check or online right to work check.
  • You carried out a manual right to work check and it was reasonably apparent that the paperwork provided was false. The Home Office deem ‘reasonably apparent’ to mean that a person untrained in the identification of false documents examining the paperwork briefly without technological equipment could reasonably be expected to see that the document was false.
  • You conducted an online check and it is reasonably apparent that the website used to carry out the right to work check was not the official Home Office online service or the check wasn’t completed properly online.
  • You employed a worker who has no right to work despite knowing this from the right to work check or you employed a worker in a role that was inconsistent with a visa condition.
  • You failed to repeat a right to work check on a worker who only has a time limited right to work.

Delegating the right to work check

If a member of staff conducts the right to work check their employer will still be liable if the right to work check is not performed correctly. If an employer recruits staff using a recruitment agency, the employer cannot rely on an assurance by the recruiter that they carried out a right to work check to avoid liability under the illegal working legislation. So, even if you are use a recruitment agency that assures you that they conduct right to work checks on their job candidates, it is still essential to carry out your own checks to obtain a statutory defence to illegal working legislation.
 

Why are right to work checks important?

The importance of carrying out right to work checks is not limited to avoiding civil penalties. Right to work checks are a vital part of the recruitment and HR function because they reduce:

  • The risk of reputational damage and adverse publicity arising from the employment of illegal workers
  • The potential for business disruption through illegal workers being removed from employment because of Home Office investigations
  • The possibility of employing vulnerable people who do not have the right to work in the UK and who are being exploited
  • The risk of a sponsor licence application being refused or an existing sponsor licence being suspended or revoked

Online right to work checks

Since the 28 January 2019, employers have been able to choose to conduct an online right to work check to establish a statutory excuse in the event of illegal working. A manual right to work check can be carried out if you prefer to conduct the check manually or if the worker does not have an immigration status that can be checked online. Since the 1 July 2021 some workers only have digital evidence of their immigration status and so will need an online right to work check completing.

You will be able to carry out an online right to work check if the worker has:

  • A current biometric residence permit
  • A current biometric residence card
  • Immigration status issued digitally under the EU Settlement Scheme or the UK points-based immigration system
  • A British National Overseas (BNO) visa
  • A frontier workers permit

The online right to work check involves:

  • Use of the Home Office online right to work checking service and viewing a job applicant’s right to work details online to establish the prospective employee has a right to work.
  • Checking any photographic evidence on the online right to work check matches the job recruit.
  • Keep a clear copy of the online right to work check response (either electronically or in hardcopy) for the duration of the worker’s employment and for two years afterwards.

Manual right to work checks – obtain, check and copy approach

The manual right to work check process can be summarised using the ‘obtain, check and copy’ method:

  • Obtain the prospective employee’s right to work original documents. Prescribed documents (detailed in Home Office guidance) must be produced. It is important that HR staff are fully trained on the documents they need to obtain.
  • Check the prospective employee’s right to work documents in the presence of the individual. This can be presence in person or via a video link, but the person undertaking the right to work check must be have the original paperwork and not copied or certified versions of the documents, or be viewing them via Skype or scan. This is to ensure that, in so far as the employer is able to ascertain, that the paperwork is genuine and that the individual has the right to work. The employer should also check that photographic identity documents are consistent with the prospective employee, that expiry dates for permission to be in the UK have not passed and that there are no visa restrictions that would prevent the prospective employee from accepting the job.
  • Copying the relevant right to work paperwork (in a manner or format that can’t be manually changed) to ensure there is a clear copy and record of the date and time the check was carried out. Copies of documents must be kept securely for the duration of the worker’s employment and for two years afterwards. The copy documents should be easily accessible in case of audit or investigation. A HR system should also be in place to ensure the copied documents are destroyed two years after the employee has left.

Proof and acceptable right to work documents

It is vital that an employer gets proof of right to work by obtaining the acceptable right to work documents, as having them is part of the Home Office code of practice you need to follow to in order to obtain a statutory excuse. The documents needed depends on the prospective employee. The Home Office right to work guidance sets out two lists, List A and List B:

  • List A contains the documents an employer can accept for a person who has a permanent right to work in the UK. If the right to work checks are correctly carried out before the individual is employed, the employer will obtain a continuous statutory excuse for the duration of the individual’s employment and no further right to work checks are required.
  • List B contains the documents an employer can accept for a person who has a non-permanent right to work in the UK. If the right to work checks are correctly carried out before the individual is employed, the employer will obtain a time-limited statutory excuse. The employer must carry out a follow-up check later on in order to retain their statutory excuse.

The Home Office has also produced a right to work checklist for those conducting a manual right to work check and the checklist can be accessed online.

Preventing exploitation of vulnerable workers

When it introduced the 2016 Immigration Act, the government said new illegal working sanctions would help tackle modern slavery and the exploitation of vulnerable workers. The intention is to discourage the employment of migrant workers who do not have the right to work in the UK by putting employers breaking this law at risk of civil penalties or, in serious breaches of illegal working legislation, criminal prosecution.

The 2016 measures against illegal working were coupled with new government agency commitments to share intelligence on illegal working. By sharing information, government agencies aim to stamp down hard on employers who fail to carry out right to work checks and who exploit vulnerable workers who don’t have the right to work in the UK. Those vulnerable workers cannot insist on the payment of the UK minimum wage or the provision of reasonable working conditions and therefore need protection from exploitation.  

Avoiding discrimination when preventing illegal working

It is essential that employers avoid discrimination when preventing illegal working. Right to work checks must be carried out on all new employees, regardless of their nationality or race. If an employer is selective about carrying out right to work checks, it could lead to a discrimination claim.

It’s important that staff tasked with the job of conducting right to work checks do so in a professional manner, and that the prospective employees (and existing employees with time-limited right to work) understand that employers are legally obligated (rather than choosing) to carry out the right to work checks and to examine their paperwork.

If an existing employee does not have a permanent right to work in the UK and the employer has to carry out any additional checks, it can lead to feelings of discrimination. In order to avoid allegations of discrimination it is sensible to ensure that you sensitively help potential employees to understand why they are being asked to participate in any additional checks.

The Home Office has produced a document entitled ‘avoiding discrimination while preventing illegal working: code of practice, 2014’ that details how best to avoid discrimination claims.

For more information on employment discrimination read our article: Business Immigration and Discrimination – a guide for UK employers recruiting overseas workers

TUPE when preventing illegal working

If an employer takes on employees under TUPE arrangements, the law states that any right to work checks carried out by a transferor of a business are deemed to have been carried out by the transferee or buyer of the business under the Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 2006.

The new employer can rely on the old right to work check carried out on TUPE employees. However, if the previous employer conducted the checks incorrectly then no defence or statutory excuse to employing illegal workers will exist. The new employer will be liable if a TUPE employee who started work on or after 29th February 2008 is found to be working illegally. As the transferee or new employer will be responsible for any liabilities arising from the employment of any illegal workers, as a precaution the employer should carry out fresh right to work checks to confirm transferred employees have the right to work. An employer has sixty days from the TUPE date to conduct new right to work checks.

What are the penalties for employing illegal workers?

The penalties for employing illegal workers are varied, ranging from financial penalties to revoking the company sponsor licence to a closure order. All of these penalties can have a massive impact on the profitably of the business, as well as creating enormous reputational damage and disruption to the employer and the business. The penalties for employing illegal workers are:

  • Civil liability – The Home Office immigration enforcement documents explain the civil liability procedure and how a financial penalty is calculated. The maximum civil penalty fine, given to an employer who has employed illegal workers without a statutory excuse and found liable, is £20,000 per illegal worker. They will be issued with a civil penalty notice setting out the total financial penalty amount and the date by which the penalty must be paid. There is a right of objection and appeal available, and if an employer receives a civil penalty notice they should take legal advice on potential defences, mitigating factors to reduce the size of the financial penalty and the potential impact of the civil penalty notice on the continuation of any licences, such as a sponsor licence or other industry related licence.
  • Criminal liability – In cases of serious illegal working, employers can be prosecuted. If convicted, the offence carries a prison sentence of up to five years and an unlimited fine. Examples of cases regarded as serious by the Home Office are where there has been a blatant disregard to the illegal working legislation and the requirement to carry out right to work checks and/or the employment of vulnerable persons liable to exploitation. In addition to the prosecution of the employer, the Immigration Act 2016 makes it an offence to work illegally in the UK. The illegal worker can face criminal prosecution with a maximum sentence of six months imprisonment and/or an unlimited fine.
  • Closure orders – The 2016 Immigration Act introduced closure notices and compliance orders for the most serious cases of employers employing illegal workers after persistent non-compliance with right to work checks. This order is made by a court and gives immigration officials wide powers of inspection as part of the compliance order. The closure notice prevents paid or voluntary work being undertaken on the employer’s premises during the continuation of the closure notice.
  • Additional consequences of employing illegal workers – Most businesses are able to recover from the financial consequences of a civil penalty notice. However, they may struggle to overcome the reputational damage and loss of trade of a business owner being disqualified as a director of the company, the revocation or suspension of a sponsor licence and the consequent business disruption and recruitment challenges, and the review of specific industry related licences such as licences in the alcohol and late-night refreshment sector.

Avoiding liability when preventing illegal working

Whilst it isn’t possible to have a fail-safe system to avoid liability when preventing illegal working there are tips that help reduce the risks of liability, such as:

  • Ensuring that you and your HR staff know and comply with the law on illegal working and right to work checks (and any changes in the law and guidance) so the business has a statutory excuse or defence in the event that you are found to have employed a member of staff who does not have a right to work in the UK.
  • Having HR systems in place that are easy for your HR staff to follow, such as right to work checklists and computerised personnel file management and diary systems.
  •  Provision of regular HR training on topics such as avoiding discrimination in the recruitment of staff and the conduct of right to work checks on both new recruits and existing employees who are subject to immigration controls.
  • If your company has a sponsor licence to sponsor employees consider the use of a sponsor licence management service to help ensure that your recruitment policies and procedures are fully compliant with the illegal working legislation to minimise the risk of being in breach of the law on illegal working.

What next?

If you are an employer and need advice on right to work checks and illegal working, our business immigration law solicitors can help. Call us on 0800 689 1700, email us at enquiries@hjsolicitors.co.uk, or fill out the short form below with your enquiry.

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