The law on preventing illegal working is set out in sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act), section 24B of the Immigration Act 1971, and Schedule 6 of the Immigration Act 2016.
If you are found to be employing someone illegally and you have not carried out the prescribed checks, you may face sanctions including:
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a civil penalty of up to £20,000 per illegal worker UPDATE: this is due to change to an penalty of £45,000 per illegal worker for a first breach, going up to £60,000 per illegal worker for repeat breaches
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in serious cases, a criminal conviction carrying a prison sentence of up to 5 years and an unlimited fine
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closure of the business and a compliance order issued by the court
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disqualification as a director
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not being able to sponsor migrants
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seizure of earnings made as a result of illegal working
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review and possible revocation of a licence in the alcohol and late-night refreshment sector and the private hire vehicle and taxi sector
All employers in the UK have a responsibility to prevent illegal working. You do this by conducting simple right to work checks before you employ someone, to make sure the individual is not disqualified from carrying out the work in question by reason of their immigration status.
There are now 3 ways you can conduct a right to work check:
A. Manual Right to Work Check; or
B. Using an Identity Service Provider (IDSP); or
C. Using the Home Office Employer Checking Service
A. Manual Right to Work Check
Step 1: Obtain
You must obtain original documents from either List A or List B of acceptable documents at Annex A [these Lists and Annex are published online by the UKVI]
Step 2: Check
You must check that the documents are genuine and that the person presenting them is the prospective employee or employee, the rightful holder and allowed to do the type of work you are offering. You must check that:
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photographs and dates of birth are consistent across documents and with the person’s appearance in order to detect impersonation;
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expiry dates for permission to be in the UK have not passed;
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any work restrictions to determine if they are allowed to do the type of work on offer (for students who have limited permission to work during term-times, you must also obtain, copy and retain details of their academic term and vacation times covering the duration of their period of study in the UK for which they will be employed);
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the documents are genuine, have not been tampered with and belong to the holder; and
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the reasons for any difference in names across documents can be explained by providing evidence (e.g. original marriage certificate, divorce decree absolute, deed poll). These supporting documents must also be photocopied and a copy retained.
Step 3: Copy
You must make a clear copy of each document in a format which cannot manually be altered and retain the copy securely: electronically or in hardcopy.
You must also retain a secure record of the date on which you made the check. Simply writing a date on the copy document does not, in itself, confirm that this is the actual date when the check was undertaken. If you write a date on the copy document, you must also record that this is the date on which you conducted the check. The Home Office guidance recommends recording the following on the document:
‘the date on which this right to work check was made: [insert date]’
These laws cover all employers, whether they hold a Sponsor Licence or not, whether they think they employ migrant workers or not.
If you do not check, how would you know if a worker was illegal?
Contact our team now for confidential advice or to arrange an audit by one of our solicitors.
