An employer commits an offence if they employ someone who is disqualified from employment by reason of their immigration status. This is set out in section 21 of the Immigration, Asylum and Nationality Act 2006, as amended by section 35 of the Immigration Act 2016.
An individual commits an offence if they work at a time when they are disqualified from working due to their immigration status. This is set out at sections 24 and 24B of the Immigration Act 1971.
It is therefore crucial for employers to carry out compliant right to work checks prior to the commencement of a worker's employment. In this guide to immigration right to work checks, we look at the nature and scope of an employer's duty to conduct right to work checks, the different types of right to work checks and the consequences of employing workers illegally.
What Is a Right to Work Check?
Right to work checks are used to ascertain whether someone is an illegal worker. An illegal worker includes someone who does not have permission to be in the UK, including overstayers, as well as those who do have permission to be in the UK but their permission does not allow them to work in the UK.
When Does an Employer Need to Carry Out a Right to Work Check?
It is important to carry out a right to work check prior to a worker starting employment as having done so is a statutory excuse against liability for a penalty if it comes to light that a worker does not have permission to work.
What Are the Different Types of Right to Work Checks?
Online Right to Work Checks
Employers must use this type of right to work check for workers who:
- Hold a Biometric Residence Permit (BRP) or Biometric Residence Card (BRC);
- Hold an e-visa;
- Hold a Frontier Worker Permit.
To conduct an online right to work check, the employer will need the worker's share code, which can be accessed here, and their date of birth. The online system will produce a photograph which the employer has to confirm is the worker. The online system will produce a response that should be kept on file.
Manual Right to Work Checks
For a manual right to work check, the employer will need to check original documents with the worker present as set out in the UK Visa and Immigrations' right to work checklist. The changed in April 2022 and for example, it is no longer permitted for a child to rely on their parent's passport to show that they are British.
When looking at the documents, the guidance states that it is important to check that:
- photographs and dates of birth are consistent across documents and with the person's appearance in order to detect impersonation;
- expiry dates for permission to be in the UK have not passed;
- 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);
- the documents are genuine, have not been tampered with and belong to the holder; and
- the reasons for any difference in names across documents can be explained by providing evidence (for example, original marriage certificate, divorce decree absolute, deed poll). These supporting documents must also be photocopied and a copy retained.
This check, including a copy of the worker's passport should be kept on file.
Delegating to an Identity Service Provider
As of 06 April 2022, it has become permissible for employers to use Identity Service Providers to conduct right to work checks. Such providers will use Identity Validation Technology. A list of certified IDSPs is available here.
This can only be used to check British/Irish passports. The employer must confirm the information used for the check relates to the correct worker.
There is no obligation to use this new method and manual right to work checks are still a valid form of check. It is worth noting that the employer is still liable for a civil penalty even if the check was carried out by an Identity Service Provider.
Documents gathered and produced for all types of check should be kept on file for the period of the worker's employment, plus an additional two years.
What if a Worker Cannot Show Their Documents or Online Status?
The Employer Checking Service tool can be used in circumstances such as when a worker has an outstanding application, review or appeal with the Home Office. This is also to be used if the person arrived in the UK prior to 1989 and does not have documents to prove their immigration status.
The tool will either produce a Positive or Negative Verification Notice.
What Are the Consequences of Illegal Working for Employers?
For employers who have been found to be employing someone illegally, the guidance sets out the possible sanctions:
- a civil penalty of up to £20,000 per illegal worker;
- in serious cases, a criminal conviction carrying a prison sentence of up to five years and an unlimited fine;
- closure of the business and a compliance order issued by the court;
- disqualification as a director;
- not being able to sponsor migrants;
- seizure of earnings made as a result of illegal working;
- review and possible revocation of a licence in the alcohol and late-night refreshment sector and the private hire vehicle and taxi sector.
The employer's name may also be published in the Employers: illegal working penalties report, with reputational consequences.
Under the Immigration Act 2016, powers to search, seize and detain were extended. This means that sanctions can be made harsher for non compliance, including the introduction of illegal working closure notice and compliance order provisions. These would be likely to apply to organisations who are persistent in their employment of illegal workers.
If an employer receives a Civil Penalty Notice, they can object to it if, for example, they are wrongly identified.
High Risk Industries
The Home Office considers some industries as high risk for illegal working, including private hire vehicles, taxis and the alcohol sector. These sectors are reliant on licences issued by local councils to operate and a finding of illegal working may result in a licence revocation or licence refusals in the future.
What Are the Consequences of Illegal Working for Employees?
Illegal working is a criminal offence. This applies when an employee knows, or has reasonable cause to believe, that they are disqualified from working.
This can result in up to six months imprisonment, an unlimited fine and an employee's wages can be seized as the proceeds of crime.
Further, a conviction will result in an adverse immigration history which would have to be disclosed on future immigration applications, impacting the individual's ability to travel, work and settle.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.