RIGHT TO WORK CHECKS

The Law:

All employers, irrespective of size or sector, have a legal duty to prevent the employment of illegal workers.

The law on preventing illegal working is set out in sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act) and sections 24 and 24B of the Immigration Act 1971. The 2006 Act replaced section 8 of the Asylum and Immigration Act 1996 (the 1996 Act) in respect of employment commencing on or after 29 February 2008.

Under section 15 of the 2006 Act, an employer may be liable for a civil penalty if they employ someone who does not have the right to undertake the work in question.

They may be excused from paying a penalty if they carry out prescribed document checks on people before employing them to ensure they are lawfully allowed to work.

Under section 21 of the 2006 Act, as amended by section 35 of the Immigration Act 2016, an employer will be deemed to have committed a criminal offence if they know or have reasonable cause to believe that they are employing an illegal worker.

Employers’ Duties

Employers’ legal duty to carry out right to work checks:

To fulfil their duty to prevent illegal working, employers must carry out a prescribed 3 step check to confirm that a potential employee is entitled to work in the UK.

This check must be done before the employment starts. Employers are also required to conduct a follow up check on individuals who have limited leave / permission to work in the UK.

The prescribed 3 steps are:

  1. Obtain the person’s original documents as specified in the Home Office guidance – please visit: https://www.gov.uk/government/publications/acceptable-right-to-work-documents-an-employers-guide;
  2. Check the validity of the documents in the presence of the holder; and
  3. Make and retain a clear copy, and make a record of the date of the check.

Further check to verify someone’s right to work will have to be carried out via the Home Office’s

Employer Checking Service in the following cases:

  1. when presented with a Certificate of Application which is less than six months old and which indicates that work is permitted; or
  2. when presented with an Application Registration Card stating that the holder is permitted to undertake the work in question. This will be restricted to employment in a shortage occupation; or
  3. when you cannot be provided with any acceptable documents because the person has an outstanding application with the Home Office which was made before their previous permission expired or has an appeal or administrative review pending against the Home Office’s decision and therefore cannot provide evidence of their right to work.

In the above circumstances, an employer will establish a statutory excuse only if they are issued with a Positive Verification Notice from the Home Office confirming that the individual in question is allowed to carry out the type of work proposed.

Penalties:

Employers who fail to adequately carry out a right to work check and are found to have employed an illegal worker, will face robust sanctions which could include:

  • a civil penalty of up to £20,000 per illegal worker;
  • a criminal conviction carrying a prison sentence of up to 5 years and an unlimited fine;
  • closure of the business and an application for a court compliance order;
  • disqualification as a director;
  • not being able to sponsor migrants (ie having their sponsor licence revoked or not being able to apply for a licence in the future); and
  • seizure of earnings made as a result of illegal working.

Even when no illegal workers are found during Home Office’s compliance visit, failing to carry out the right to work check correctly, could still jeopardise the outcome of a Sponsorship licence application or have a negative impact on an existing licence.

Tips:

Whilst carrying out mock audits or preparing our clients for an official compliance visit, we often found that discrepancies

For further information please contact us.