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 legally obliged to carry out checks on a person’s right to work before employing them. Since January 2019, employers can choose between a manual check of original documents and an online “right to work” check using the Home Office Checking Service. Both methods give the employer a statutory defence to a civil penalty if an employee is later found to be working illegally, as long as the correct procedure was followed.


With a manual check, only documents from a specified list are allowed and only a full check provides the statutory defence. Partial compliance, for example, looking at photocopies instead of originals, does not. Original documents should be checked in the presence of the document holder and a copy taken and retained. If original documents are not available, the employer should use the online Checking Service. 



Where a worker has a limited right to remain, employers must repeat the check when their leave is due to expire. International students with a limited right to remain must show that they are following a course of study and provide evidence of term dates and vacations.




The maximum civil penalty for breaking the law is £20,000 per worker found not to have the right to work. Deliberately employing such a worker is a criminal offence, punishable by a fine and/or up to five years in prison.
 



The Immigration Act 2016 (IA 16) introduced a range of new harsh sanctions, including a criminal offence of illegal working, which includes overstaying a visa. Police can seize wages and close premises for up to 48 hours. There are also measures making it harder for undocumented workers to have a bank account or a driving licence.
Other measures include an “immigration skills charge” on employers that use foreign labour and a requirement for public-facing public sector workers to speak fluent English (or Welsh in Wales). 



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





Employers should ask all job applicants to prove their right to work in the UK. Selecting only some individuals based on assumptions is likely to generate race and/or religious discrimination. There is a Code of Practice, Avoiding unlawful discrimination while preventing illegal working. In Northern Ireland, the law also prohibits discrimination based on political opinion.


Employers can, and usually do, make job offers conditional on the job applicant having the right to work in the UK.