Checking the right to work in the UK

It is a criminal offence to employ someone with no legal right to work in the UK. Employers are obliged to carry out checks on a person’s right to work before employing them.

The Immigration, Asylum and Nationality Act 2006 (IANA) requires employers to ask all potential recruits for documentation to prove their right to work in the UK before employing them. Only documents from a specified list are allowed. Original documents should be checked in the presence of the holder, and a copy taken and retained.

IANA introduced two new offences: negligently employing an illegal worker, which is a civil offence with financial penalties; and deliberately employing an illegal worker, punishable by a fine and/or imprisonment.

The Immigration Act 2014 (IA 14) received Royal Assent on 14 May 2014. IA 14 has increased the sanctions for employing illegal workers. The maximum civil penalty for each illegal worker is now £20,000.

Checks must be completed before the individual starts work. Under IA 14, where a worker has a limited right to remain in the UK employers must repeat the immigration check when their leave is due to expire. International students with limited right to remain must show they are following a course of study and give their employer evidence of term dates and vacations.

IA 14 removes the defence for employers who carry out a partial check, for example, by looking at photocopies instead of originals. Only full compliance with the checking obligation provides a defence to an employer later found to be employing an illegal worker.

Right to work checks on staff after a TUPE transfer (see Chapter 12) must be conducted within 60 days of the transfer date.

Employers must ask all job applicants to prove their right to work in the UK. Selecting only some individuals based on assumptions about their right to work is likely to be race discrimination. A statutory Code of Practice updated in May 2014, Avoiding discrimination while preventing illegal working, is available on the Home Office website (see also Chapter 6). The Code can be taken into account in employment tribunal proceedings.