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. 


The Immigration, Asylum and Nationality Act 2006 (IANA 06) 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 06 introduced two new offences: negligently employing an illegal worker, which is a civil offence with financial penalties; and deliberately employing an illegal worker, which is punishable by a fine and/or imprisonment. The maximum civil penalty for employing each illegal worker is £20,000 (Immigration Act 2014 (IA 14)). 


Checks must be completed before the individual starts work. Where the worker has 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 that they are following a course of study and give their employer evidence of term dates and vacations.


IA 14 removed the defence for employers who carry out a partial check by, for example, looking at photocopies instead of originals. Only a full check provides a defence to an employer later found to have taken on 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, Avoiding discrimination while preventing illegal working, is available on the Home Office website. The Code can be taken into account in employment tribunal proceedings.


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


In January 2015, it became illegal for employment agencies and businesses to advertise jobs in the rest of the European Economic Area (EEA) unless they also advertise them in Great Britain in English. Since not all jobs are routinely advertised, the government launched a fresh consultation in October 2015 to create an additional legal obligation on agencies and businesses - to advertise vacancies in the UK and in English, at the same time as, or 28 days before, any recruitment activity elsewhere in the EEA. There are already strict limits in place on recruiting for UK jobs outside the EEA.


Since 2008, recruitment from outside the EEA (known as “Tier 2 workers”) has been subject to a Points Based System and any applicant must have an employer sponsor. The government allocates an annual quota of 20,700 Restricted Certificates of Sponsorship, divided over 12 equal months, and with priority to those skilled in a “shortage occupation”. There are already language requirements in place for these workers. There are also rules in place setting minimum salary levels. In April 2016, a new minimum salary requirement of £35,000 was introduced for Tier 2 workers seeking indefinite leave to remain in the UK. There are some occupational exceptions.


An employer must not discriminate against any employee who needs sponsorship to apply for or continue in their role, for example, by automatically ruling them out, because the employer assumes they will not be awarded the necessary visa or extension.