Checking the right to work in the UK

Since 1997 it has been a criminal offence for an employer to employ someone who has no legal right to work in the UK under the Asylum and Immigration Act 1996, which required employers to check a person’s entitlement to work before employing them.

The government introduced stricter controls through the Immigration, Asylum and Nationality Act 2006 (IANA) which apply to the recruitment of workers. This law requires employers to ask potential recruits for documentation that proves their right to live or work in the UK, which can include a passport, birth certificate or certificate of registration.

IANA also introduced two new offences for employers: one of negligently employing an illegal worker, which is a civil offence with financial penalties; and one of deliberately employing an illegal worker, which is punishable by a fine and/or imprisonment. During 2011, £12 million in fines were issued to employers by the UK Border Agency (UKBA) for employing illegal workers.

The government has announced that the UKBA is issuing more biometric residence permits to foreign nationals, to make it easier for employers to check the right to work. These are stand-alone documents that confirm the right. In 2013, the UKBA is also piloting a “chip-checking” service for employers.

Employers should ask all job applicants to prove their entitlement to work in the UK. Selecting only some individuals based on assumptions about their right to work is likely to amount to race discrimination. There is guidance, as well as a Code of Practice on avoiding discrimination when carrying out checks on the UKBA website at: www.ukba.homeoffice.gov.uk/business-sponsors/preventing-illegal-working/checking-brp/avoidingdiscrimination/ (See Chapter 6).

In the 2013 Queen’s Speech, the government announced plans to introduce tougher penalties for employers who employ workers who do not have the right to work in the UK.