UK employers have a legal obligation to prevent illegal working by verifying all employees have a valid right to work in Britain.
The Home Office dedicates considerable resources to investigating employers and taking enforcement action in the event of a breach. Where an employer is found to be employing workers illegally, they face substantial fines, disruption to business, reputational damage and, potentially, criminal sanctions.
It is important that HR teams, line managers and anyone responsible for recruiting and onboarding employees in your organisation understand the Home Office Right to Work requirements and how to comply with the regulations to protect your business.
What is the ‘Right to Work’?
In order to work legally in the UK, an employee must have valid permission to carry out the work in question, known as ‘Right to Work’.
Non-UK residents must in most cases have been granted the Right to Work on the basis of their immigration status. This means applying to the UK Home Office for a visa that will permit the individual to work in accordance with the rules of that particular visa route. Limitations will generally apply to a visa holder’s Right to Work, including time restrictions aligned to the visa validity.
The Skilled Worker visa, for example, permits migrants to work in the UK within highly skilled roles, whereas individuals on visitor visas are not permitted to undertake paid employment in the UK during a visit. Individuals with UK Indefinite Leave to Remain however are not subject to time restrictions on their Right to Work.
UK citizens automatically have the Right to Work, as do EU nationals under the current pre-Brexit rules. The immigration and working rights of EU citizens are however expected to change once EU freedom of movement ends and the UK introduces a new immigration system in 2021.
Right to work document checks
Under the Home Office Right to Work regime, employers are required to verify that workers’ permissions are valid by conducting document checks before any individual starts employment with an organisation.
Where individuals are subject to time restrictions on their Right to Work, employers must conduct further checks on a regular basis to confirm their continued Right to Work.
Employers must follow certain Home Office requirements in order to comply with their Right to Work duties when onboarding new employees. This includes checking specific documents, as prescribed by the Home Office, to verify if the individual is permitted to perform the role in question.
Importantly, Right to Work checks must be conducted on all employees, regardless of nationality, race or any perceived or assumed Right to Work. Failure to perform the checks consistently can result in discrimination claims.
Three steps to Right to Work compliance
Home Office guidance stipulates three stages to the Right to Work checking process. Following these guidelines may allow you to rely on a statutory defence if you are facing allegations of employing illegal workers.
Step 1: Obtain the correct documents
Employers can only accept certain documents to verify an individual has the Right to Work in the UK. They are contained in the Government’s list A and list B of acceptable documents.
List A relates to documents that prove an individual is not subject to immigration control and has a permanent Right to Work in the UK, such as UK citizens.
If the individual has been granted leave to enter or remain in the UK for a limited period of time and/or has restrictions on their Right to Work, you have to refer to List B for the range of documents that are acceptable.
If an individual has an outstanding Home Office application and cannot produce acceptable documentation, the employer should use the Home Office Employer Checking Service to request a verification notice to confirm if the person has the Right to Work in the UK.
Step 2: Check document validity
The next step is checking that the documents obtained are valid and genuine. You should be reasonably certain that the document is valid. You must to check the physical documents and the candidate should be present with you when you are examining the documents.
The duty on employers is not overly onerous in having to identify forgeries or fraudulent documents, but you are expected to examine the quality of the document and ensure the photograph corresponds with the candidate in front of you. Consistent photos, dates of birth and signatures can also confirm validity.
Where this task is delegated, whether to HR, line managers or site managers, ensure training is provided to support in conducting effective and compliant checks.
Step 3: Take copies for your records
The next step is to ensure a copy of the documents is made and retained for your records. It should be an attested copy, signed and dated by the person who has conducted the check. All Right to Work documents should be kept for two years after the employee has left your company.
Employer checking service
Employers are now able to check the Right to Work status of individuals online using the government’s employer checking service, in limited circumstances. The employee will first need to provide a share code to enable the organisation to access their records.
Where a candidate has time-limited Right to Work, you will have to conduct further checks to confirm continued lawful working status. This means scheduling follow-up checks at specific junctures, at least on an annual basis and certainly in advance of current visa expiry.
Employees with time-limited permission must provide right to work documents from ‘List B’ of Home Office guidance.
Penalties for breaching the Right to Work rules
Rules and regulations surrounding the Right to Work in the UK should be taken seriously. The Home Office is proactive in pursuing employers for non-compliance with the regulations.
Where the Home Office suspects an organisation is employing workers illegally, perhaps as a result of specific intelligence such as an anonymous tip-off or complaint from a former employee, they can attend the employer’s premises without notice to investigate the allegations.
Immigration raids are daunting. Immigration officials will expect to examine records of your Right to Work checks and all other documents relating to your migrant workers to determine whether your migrant employees are lawfully employed or if you are in breach of your duties. They can also interview migrant workers.
If the immigration enforcement officers find evidence that employees are working illegally, they may be detained and subsequently deported.
The business can then face a number of penalties, which, depending on the severity and number of the breaches, could include:
- Substantial fines, known as a civil penalty – this can be up to £20,000 per illegal worker
- Losing your trading license
- Business listed on the Government public list
- Sponsor licence downgrading, suspension or revocation
- Criminal conviction of up to five years
- Closure of business by the court
- Seizure of earnings
The level of civil penalty you receive for illegal working will depend on the specific facts of your individual case, such as whether you are deemed to have knowingly hired an illegal worker or if this the organisation’s first breach.
Challenging an illegal working fine
If you are facing allegations that you have employed illegal workers at your business, you may be able to rely on a ‘statutory excuse’ as a defence to either seek to reduce the fine or have it cancelled altogether.
The statutory excuse may apply if can show you have completed compliant Right to Work checks on the employee(s) in question, and can show there is a consistent system in place for checking employees’ working status, and that the unlawful status was as a result of an error or was discovered at a later stage. In other words, you have met the requirements under law to perform document checks and are able to evidence how you have been compliant with the rules.
It is not enough to simply photocopy a candidate’s documents and show them as part of statutory excuse. You have to show a consistent and compliant approach to Right to Work checks, making an audit trail and record keeping of your document checks and processes critical.
A full assessment of your case by an immigration specialist will help to identify any grounds for challenge, including examining the Home Office’s conduct and procedure to ensure the fine was lawfully issued.
Right to Work checks FAQs
What are right to work checks?
Right to Work checks are a legal requirement on employers to verify that all workers are eligble to work in the UK before they start employment.
What are the three steps of a right to work document check?
Home Office guidance for employers states that Right to Work checks should include the following three stages: Step 1 - obtain acceptable documents from Lists A or B to prove the Right to Work; Step 2 - check the validity of the documents; and Step 3 - Retain a copy of the documents as proof your check.
Step 3—Copy. Step 3 requires the employer to undertake three tasks.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.