Immigration status 




It is unlawful to employ someone who does not have valid leave to enter or remain in the UK, or who has valid leave but is not permitted to work. Doing so would render the employer liable to a large fine. Employers can avoid the penalty if they can show that they correctly checked immigration documentation before employing the job applicant, following strict rules (see Chapter 3). 


Sometimes employers carry out immigration spot-checks on their existing workforce. An employer who dismisses an existing employee for failing to provide immigration documents cannot rely on the statutory fair reason that continued employment would mean “contravening a legal duty or restriction”. This is because the law does not require the employer to carry out these spot-checks. Instead, the law provides a statutory defence to a possible fine, but only if the employer conducted the checks at the correct time (that is, before employment begins) (Baker v Abellio London Limited [2017] UKEAT/0250/16/LA). There may, however, be a fair reason based on some “other substantial reason” — see below. 


In any event, where an employee has the right to work in the UK but simply cannot prove it, the employer cannot fairly dismiss them based on “contravening of a legal duty or restriction”. This is because their continued employment is not unlawful. In some circumstances, an employee’s inability to produce immigration documents following a reasonable request might provide a fair reason for dismissal for “some other substantial reason”, but only if the employer has acted reasonably throughout, including, for example, by following a fair procedure, keeping the employee properly informed and conducting a full investigation, including corresponding with the immigration authorities to try to establish the employee’s correct immigration status (Baker v Abellio London Limited [2017] UKEAT/0250/16/LA). 


Where information provided by the Home Office is unclear, employers should not simply accept it. Instead they should ask for more clarity before deciding to dismiss (Ssekisonge v Barts Health NHS Trust [2017] UKEAT/0133/16/LA).


If a migrant worker cannot produce original documents because they have an outstanding immigration appeal or other application, employers should use the online Home Office Employer Checking Service.