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 and employers are obliged to carry out checks on a person’s right to work before employing them.

Stricter controls were introduced by the Immigration, Asylum and Nationality Act 2006 (IANA). This law requires employers to ask potential recruits for documentation that proves their right to live or work in the UK, which can include an original passport and visa, birth certificate or certificate of registration.

IANA 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, punishable by a fine and/or imprisonment.

The government’s Immigration Bill, making its way through Parliament as Law at Work goes to press, will further tighten up employers’ checking obligation, and increase sanctions. The maximum civil penalty per illegal worker where an employer commits more than one breach will rise from £10,000 to £20,000. Checks must be completed before the individual starts work. Under the current law, where an employee had a limited right to remain in the UK, employers are obliged to repeat the right to work check every 12 months. The Immigration Bill will change this to an obligation to repeat the check when a person’s leave is due to expire. The Home Office Checking Service can be used to confirm that an application is pending and that the Home Office is holding the employee’s original papers.

The Immigration Bill will remove the defence for employers who carry out a partial check, for example looking at photocopies instead of originals. Under the new law, only full compliance with the checking obligation will provide a defence to an employer later found to be employing an illegal worker. The government is also consulting on tighter controls for students whose visa allows some work, for example by requiring employers to demand evidence of term dates.

The UKBA is issuing more biometric stand-alone residence permits to foreign nationals. The aim is to make it easier for employers to check the right to work by digitally checking one permit document.

Employers must 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 be race discrimination. There is guidance, and a Code of Practice on avoiding discrimination when carrying out checks, available on the UKBA website (https://www.gov.uk/government/collections/employers-illegal-working-penalties). See also Chapter 6).