The right to work in the UK 



It is a criminal offence to employ someone who has 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. 



Employers must 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 document holder, and a copy taken and retained (Immigration, Asylum and Nationality Act 2006 (IANA 06)). If someone cannot produce original documents because of an outstanding immigration appeal or application to the Home Office, the employer should use the online Home Office Checking Service to check their right to work. 



Checks must be completed before someone starts work. Where a 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 a limited right to remain must show that they are following a course of study and give their employer evidence of term dates and vacations.



Only a full check provides a defence to an employer later found to have taken on an illegal worker. Partial compliance – for example looking at photocopies of documents instead of originals – is no longer good enough to avoid liability. 



An employer of illegal workers risks a range of civil and criminal offences. The maximum civil penalty for employing each illegal worker is £20,000 (Immigration Act 2014). Deliberately employing an illegal worker is a criminal offence, punishable by a fine and/or up to five years in prison.


In addition, new sanctions introduced under the Immigration Act 2016 (IA 16) – called Labour Market Enforcement Undertakings – in force from 26 November 2016 – are intended to target employers that persistently break employment laws, including national minimum wage regulations (see Chapter 4: national minimum wage enforcement).


The IA 16 also created a range of new sanctions targeting the individual illegal worker, including a new criminal offence of illegal working (including anyone overstaying their visa). The new offence allows police to seize the wages of undocumented workers. The IA 16 also includes measures making it easier to evict these workers and harder for them to have a bank account or hold a driving licence.


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.


The IA 16 created a new regulator — the Director of Labour Market Enforcement – with overall authority over enforcement of labour market offences, including the activities of HMRC national minimum wage enforcement, the Gangmasters and Labour Abuse Authority and the Employment Agencies Standards Agency. The new Director is to work alongside the Anti-Slavery Commissioner. The first Director, Sir David Metcalf, was appointed in January 2017.