2008 saw the inception of the Points Based System and the introduction of the Sponsor Licence for organisations wishing to employ foreigners in-country, from abroad, or transfer them to the UK from an overseas subsidiary. It also marked the start of Right to Work check practices where the Home Office placed on employers the responsibility to comply with prevention of illegal working legislation, ensuring that checks are carried out to verify and record that all their employees have the appropriate right to work and live in the UK.

The Right to Work legislation and requirements have changed over the years with penalties and crackdowns becoming tougher at the same speed as the immigration debate and rhetoric has become hotter and more political. Following last week’s announcement by the Government that a tougher immigration compliance regime for employers is yet to come, below we take you through the right to work legislation and obligations for employers as they stand at present, and what is proposed to change in the near future.

Current Right to Work Check Legislation Requirements

At present, you can be fined up to £20,000 per employee for employing illegal workers, or if your organisation fails to show that you have appropriate HR systems in place to check and record your employees’ immigration status as it relates to their right to work and live in the UK.

Illegal workers include:

  • students with expired visas, or students working more hours than they’re allowed to
  • people who work on a visitor’s visa

If your organisation is caught employing an illegal worker:

You will get a ‘referral notice’ to let you know that:

  • your case is being considered
  • you may get a fine (also known as a civil penalty) of up to £20,000 for each illegal worker

Your organisation will not have to pay a fine if you can show a valid reason for employing an illegal worker. However, if this is not the case, you will be sent a ‘civil penalty notice’ if you are found liable and you will have 28 days to respond.

The penalty notice will give your payment options and tell you what do next. It will also tell you how to appeal if you want to.

Your business’ details may be made public by Immigration Enforcement as a warning to other businesses not to employ illegal workers. This comes along legal, financial, and above all reputational damage.

The organisation’s Sponsor Licence Authorising Officer can be sent to jail for up to 2 years and receive an the business can receive an unlimited fine if found to have ‘knowingly employed’ an illegal worker.

Proposed Changes in the upcoming Immigration Bill

As reported by the media, including City A.M last week “Illegal workers face jail as part of crackdown on rogue migrants and employers”

“The Government is raising the stakes in its crackdown on illegal working introducing new penalties for employers who give jobs to undocumented migrants.”

“Immigration minister James Brokenshire has said: Illegal workers will face the prospect of a prison term and rogue employers could have their businesses closed, have their licences removed, or face prosecution if they continue to flout the law.”

“He said: ‘Using illegal labour exploits workers, denies work to UK citizens and legal migrants and drives down wages,’ adding that new powers in the forthcoming immigration bill will “make it easier to prosecute an employer who knows, or reasonably suspects, that the person they employ has no permission to work in the UK”.

“The bill proposes closing businesses found to be employing illegal migrants, possibly for up to 48 hours, while they prove right to work checks have been conducted on staff.”

“The Home Office has also said that under the new legislation, any pub, off-licence or late-night takeaway that fails to comply with immigration laws or employs illegal workers could be stripped of its licence to operate.”

Checking a Job Applicant’s ‘Right to Work’ Documents

You must check that a job applicant is allowed to work for you in the UK before you employ them.

  1. You must see the worker’s original documents.
  2. You must check that the documents are valid with the worker present.
  3. You must make and keep copies of the documents and record the date you made the check.

As previously explained, you could face a civil penalty if you employ an illegal worker and haven’t carried out a correct right to work check. However, when carrying out right to work check you must also be careful not discriminate against anyone because of their race.

Checking the documents

You need to check that:

The documents are genuine, original and unchanged and belong to the person who has given them to you.

The dates for the worker’s right to work in the UK haven’t expired.

Photos are the same across all documents and look like the applicant/ worker.

Dates of birth are the same across all documents.

The person has permission to do the type of work you’re offering (including any limit on the number of hours they can work)

If employing international students, you must see and keep on record evidence of their study and vacation times.

If 2 documents give different names, the employee must provide (and HR retain copies of) supporting documents showing why they are different, for example a marriage certificate or divorce decree.

Further Checks

You are requited to carry out further checks if the person has restrictions or limitation on their right to work in the UK.

How to take copies of documents:

Make a copy that can’t be changed, (e.g. a photocopy).

For passports, copy any page with the expiry date, applicant’s details (e.g. nationality, date of birth and photograph) including endorsements, for example a work visa or Certificate of Entitlement to the right of abode in the UK.

For Biometric Residence Permits, copy both sides.

For all other documents you must make a complete copy.

Keep copies during the worker’s employment and for 2 years after they stop working for you.

Record the date the check was made.

Make sure you follow data protection law.

What if the job applicant is unable to show their documents?

You can only ask the Home Office to check your employee or potential employee’s immigration employment status if:

You are reasonably satisfied that they can’t show you their documents because of an outstanding appeal or application with the Home Office;

They have an Application Registration Card;

They have a Certificate of Application that is less than 6 months old. The document must state that the work that the employer is offering is permitted. Many Application Registration Cards and Certificates of Application don’t allow the person to work.