In a further attempt to crack down on illegal working, a new offence came into force on 12 July 2016. The new offence means that workers themselves, as well as their employers, are now liable to imprisonment and/or a fine if they work in the UK without the appropriate permission. Clare Taylor and Sophie Placzek consider the impact for migrant workers and their employers.

Who has the Right to Work?

British citizens, EEA nationals and individuals who have been granted indefinite leave to remain in the UK all have the right to work in the UK without the need to obtain additional approval. Family members of EEA nationals will, in most cases, also have the right to work.

Who does not have the Right to Work?

Under the new regime a person will commit an offence if he works while he is ‘disqualified’ from working by reason of his immigration status and knows or has reasonable cause to believe that he is disqualified from working. An employer will commit an offence if it had ‘reasonable cause’ to believe that a worker is disqualified from working.

A person is disqualified from working in the following circumstances:

  • if he has no leave to enter or remain in the UK – this is the case if an individual enters the UK without appropriate permission (a ‘classic’ illegal immigrant) or if he stays in the UK beyond his period of leave;
  • his leave is invalid – for example because a migrant is in breach of the conditions of his leave;
  • his leave has ceased to have effect because it has been revoked, cancelled or curtailed – the Home Office notifies migrants if their leave has been curtailed but does not issue reminders to migrants to extend their leave; or
  • his leave imposes conditions on the work he can do and he works in breach of those conditions – this will be most common in the case of students whose leave limits the number of hours they can work per week; usually to 20 hours per week during term time. Working in excess of their permitted hours means that they will be ‘disqualified’ from working during those hours.

Importantly, if a foreign national submits a valid application to extend his leave in the UK prior to the expiry of his leave he will continue to have leave on the same basis, and therefore continue to have the Right to Work until such time as his application is approved or his rights of appeal have been exhausted.

The offence of illegal working

The offence of illegal working covers all types of work and is not limited to working under a contract of employment. It includes apprenticeships, contractors and individuals providing goods and services to the public.

The new regime gives the government the power to seize all wages earned by a migrant while he was disqualified from working. In England and Wales a person found guilty of illegal working can be imprisoned for up to 6 months and face an unlimited fine.

The offence of employing an illegal worker

Under previous legislation, in order to be guilty of an offence, an employer must have had actual knowledge that the relevant worker did not have the right to work. Under the new regime, all that is required is that the employer had ‘reasonable cause’ to believe that the employee is disqualified from employment. This is a lower threshold of knowledge and could lead to employers being fined if they had doubts as to an employee’s status but did not carry out the necessary checks.

Employers continue to have a statutory excuse from liability if they have, prior to the commencement of employment, checked the employee’s original identity documents and are satisfied that the document(s) provided give the employee a right to work. Employers must also conduct a follow-up check on employees who have limited permission to work in the UK but this will not apply if they have reasonable cause to believe that the employee does not have permission to work in the UK.

If an employer fails to carry out the checks and is found to employ a worker who is disqualified from working, it could face a fine of up to £20,000 for each worker and imprisonment of up to five years (this has increased from two years) and an unlimited fine.