The right to work in the UK 




It is a criminal offence for an employer 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 (section 15, (Immigration, Asylum and Nationality Act 2006 (IANA 06)). 




Employers are required 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 must be checked in the presence of the document holder, and a copy taken and retained. 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 a 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 provide evidence of term dates and vacations.




Only a full check provides a defence to an employer found to have employed a worker without the right to work in the UK. Partial compliance, for example, looking at photocopies of documents instead of originals, will not enable them to avoid liability. 




The maximum civil penalty for employing each such worker is £20,000 (Immigration Act 2014). Deliberately employing a worker without the right to work in the UK is a criminal offence, punishable by a fine and/or up to five years in prison.
Further sanctions were introduced under the Immigration Act 2016 (IA 16) called Labour Market Enforcement Undertakings. These are intended to target employers that persistently break employment laws, including National Minimum Wage regulations (see Chapter 4).



The IA 16 also created a range of new harsh sanctions targeting the individual illegal worker, including a new criminal offence of illegal working (including overstaying a 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.


Other measures introduced by the IA 16 include an “immigration skills charge” on employers that use foreign labour, a requirement for public-facing public sector workers to speak fluent English (or Welsh in Wales); and a power to close premises for up to 48 hours. 


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 stereotypical assumptions about their right to work is likely to be race and/or religious discrimination. In Northern Ireland, the law also prohibits discrimination based on political opinion. 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 job applicant having the right to work in the UK.