Under the Immigration, Asylum and Nationality Act 2006, all employers are required to meet their duties to prevent illegal working in the UK by carrying out document checks to ensure that anyone who applies to them for employment has the right to work in the UK.
What is the definition of an illegal worker?
Illegal working can come in many different forms. Generally speaking, an illegal worker is an individual who is subject to immigration control, aged 16 years or older, and does not have the requisite permission to, for example, carry out the work they are being employed to do, or to enter or remain in the UK.
UK immigration rules places duties on employers to carry out right to work checks to identify such individuals and bring them to the attention of the Home Office.
Penalties
Should an employer fail to carry out these checks, or if they carry them out in an incorrect or ineffective manner, and are subsequently found to be employing an illegal worker, a fine known as a civil penalty may be issued under section 15 of the 2006 Act.
The Home Office can issue civil penalties of up to £20,000 for each illegal worker, with no limit on the number that can be served on the employer. The employer may also face imprisonment if they are found to have knowingly employed an illegal worker.
Right to work document checks
There are 3 stages to this process that employers should follow to be compliant with their right to work duties, as prescribed by the Home Office:
- Obtaining the required documents,
- Checking the documents and
- Making a record of the checks.
These checks should be carried out on all new employees – regardless of their nationality, gender or race – before they begin work with you. Employing a British worker carries the same responsibility to carry out right to work checks as are required for an overseas worker.
You must ensure that any employee has the correct right to work documents that belong to them, that any time limit on the right to work documents has not expired, that they have permission to carry out the type of work you wish to employ them for, and that they are allowed to work the contracted hours you wish to employ them for.
By carrying out these checks, you are protecting yourself from the possibility of paying a civil penalty, should an allegation of illegal working or immigration non-compliance arise.
Request and have sight of valid right to work documents
The prospective employee should provide you with the original documents. Copies are not acceptable.
Right to work documents should show an ongoing right to work in the UK or that the holder has a right to work in the UK for up to 12 months.
List A: Documents which show an ongoing right to work in the UK:
- A passport which states that the holder, or a person named in the passport as the child of the holder, is a British citizen, or UK and Colonies citizen, and has the right to reside in the UK.
- A passport or national identity card which states that the holder, or a person named in the passport as the child of the holder, is a EEA country or Switzerland national.
- A residence permit, registration certificate or document issued by the Home Office which certifies permanent residence to an EEA country or Switzerland national.
- A permanent residence card or document issued by the Home Office to the family member of an EEA country or Switzerland national.
- A biometric residence permit issued by the Home Office which states that the person named in it has permission to remain in the UK for an indefinite amount of time, or that there is no time limit on their stay in the UK.
- A passport or other travel document that has been endorsed to make the holder exempt from immigration control and allows them to remain in the UK for an indefinite amount of time, or states that there is no time limit on their stay in the UK.
- An immigration status document issued by the Home Office, which is endorsed to give the person named in it permission to remain in the UK for an indefinite amount of time, or states that there is no time limit on their stay in the UK, accompanied by an official document issued by a government agency or previous employer which states the person’s name and national insurance number.
- A full birth certificate or adoption certificate issued in the UK which states the name of at least one of the holder’s parents or adoptive parents, accompanied by an official document issued by a government agency or previous employer which states the person’s name and national insurance number.
- A birth certificate or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, accompanied by an official document issued by a government agency or previous employer which states the person’s name and national insurance number.
- A certificate of registration or naturalisation as a British citizen, accompanied by an official document issued by a government agency or previous employer which states the person’s name and national insurance number.
- A letter issued by the Home Office to the holder which states that the person named in it has permission to remained indefinitely in the UK, accompanied by an official document issued by a government agency or previous employer which states the person’s name and national insurance number.
List B: Documents which show a right to work in the UK for up to 12 months:
- A passport or travel document which is endorsed so that the holder has permission to remain in the UK and carry out the type of work the employer is offering.
- A biometric residence permit issued by the Home Office which states that the person named in it may remain in the UK and has permission to carry out the type of work the employer is offering.
- A residence card or document issued by the Home Office to a family member of an EEA country or Switzerland national.
- A work permit or other document of approval to take up employment, issued by the Home Office, accompanied by a passport or other travel document which is endorsed so that the holder has permission to remain in the UK and carry out the type of work the employer is offering, or a letter issued by the Home office to the holder or to the employer stating the same.
- A certificate of application issued by the Home Office, which is less than 6 months old, for a family member of an EEA country or Switzerland national, confirming that the holder has permission to take up employment, accompanied by a positive verification letter issued by the Home Office’s Employer Checking Service.
- An application registration card (ARC) issued by the Home Office, which states that the holder is ‘allowed to work’ or ‘employment permitted’, accompanied by a positive verification letter issued by the Home Office’s Employer Checking Service.
- An immigration status document issued by the Home Office, endorsed to show that the person named on it may remain the UK and has permission to carry out the type of work the employer is offering, accompanied by an official document issued by a government agency or previous employer which states the person’s name and national insurance number.
- A letter issued by the Home Office to the holder or to the employer which states that the person named in it has permission to remain in the UK and carry out the type of work the employer is offering, accompanied by an official document issued by a government agency or previous employer which states the person’s name and national insurance number.
Check that the documents are genuine and valid
For each document that the prospective employee supplies as proof of their right to work in the UK, you must check that:
- any photographs are a good likeness with the person, and are consistent across all documents
- dates of birth are consistent across all documents and that you are happy that the dates match with the person
- any time limited permission to enter or remain in the UK has not expired
- any UK immigration endorsements, such as a visa or biometric residence permit, are still
- valid and allow the person to carry out the type of work you are offering, including any limitations on the number of hours they can work
- all documents are genuine and have not been altered
- any discrepancies of name, where different names appear on documents, are satisfactorily explained, for instance by producing a marriage certificate
You may wish to use The Employer Checking Service (ECS) to confirm that a prospective employee has a continuing right to work in the UK.
The ECS can be especially helpful where:
- the employee can’t provide their documents, for instance, if their documents are currently with the Home Office
- the employee has an application registration card
- the employee has a certificate of application
You will need to obtain the employee’s permission before using the ECS to check their right to work in the UK.
The ECS will require the employee’s full name, date of birth, nationality, job title (or prospective job title), weekly hours to be worked, home address, and their Home Office reference or case ID if they have those.
You should also provide your business name, business type, and business contact information.
Take a copy of the document that cannot be altered
This may be a photocopy or a scan. Where using an electronic copy, a non-rewritable format must be used. Take a copy of any relevant pages or parts of the documents. For some documents, this will be the document in its entirety.
For each prospective employee, you should keep:
- a copy of all right to work documents and supporting evidence
- a record of any communications
- a record of the final decision on whether the right to work in the UK is in place
- a note of the dates the check was carried out and finalised
This record should be retained during the worker’s employment with you and for two years after their employment finishes. It is your responsibility to check that your employees have a continuing right to work in the UK. It is a crime to continue to employ someone whose right to work in the UK has expired.
What to do when a person does not have the right to work in the UK
If after carrying out the document checks, you discover that the prospective employee does not have the right to work in the UK, you must refuse employment to them.
The responsibility is with that person to obtain the right to work in the UK and prove that right to you, should they wish to take up the employment you are offering.
How legal advice can help
Seeking specialist legal advice when taking on employees can offer a level of security to an employer that the correct procedures are being followed and prevent any possibility of fines or more serious penalties.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.
