The UK Home Office relies heavily on employers in the clampdown against illegal immigration by preventing illegal working.
UK employers are required by law to perform prescribed document checks to verify each of their employee’s right to work in the UK. Right to work checks must be carried out for all prospective and existing employees.
Illegal immigration comes in many guides, from those who have mistakenly overstayed to those who have been in the UK without papers for many years. It is for employers to have the processes in place to identify any individual who is without current, valid permission to carry out the work at hand.
Failure to carry out these document checks correctly, or at all, can result in significant civil and criminal sanctions against the employer. If you fail to carry out a right to work check correctly, or at all, and you are found to be employing someone illegally, you may incur a civil penalty of up to £20,000 per illegal worker. The Home Office will determine the level of breach and the amount of any civil penalty for which you may be liable on a case-by-case basis.
Following recent legislative changes, employers can now also face hefty fines and significant custodial sentences if they knew, or had reasonable cause to believe, that an employee did not have permission to work in the UK or undertake the work on offer.
Only by complying with the right to work provisions can employers establish and rely on a statutory excuse to defend against Home Office penalties in the event that their business is found to be employing an individual unlawfully.
Tips for performing compliant document checks
Obtain an original document, or combination of documents, in accordance with the relevant Home Office approved lists. In some cases, where the individual cannot present the required documentation, you may need to verify the employee’s right to work with the Home Office Employer Checking Service.
Check the validity of that documentation in the presence of the holder. When checking the validity of an employee’s proof of right to work, you must ensure that the documentation is genuine, that the person presenting the documentation is the rightful holder and the expiry dates for permission have not expired. While you are not required to be an expert in fraud, basic training may be required to equip personnel to carry out right to work checks correctly.
Retain a clear copy of the documentation electronically or in hardcopy for the duration of the individual’s employment, and for a further 2 years after they leave. Also make a contemporaneous record of the date on which you conducted your check. Employers can be fined by the Home Office for failure to produce records relating to previous employees from within two years of their employment being terminated.
Responsibility for performing right to work checks is with you where you are the employer. You cannot delegate this responsibility to a third party such as a recruitment agency. If a third party conducts the checks on your behalf, you will be unable to establish a statutory excuse in the event that the check is not carried out correctly and the employee in question is found to be working illegally.
If as a result of a document check you become aware that an individual does not hold valid right to work, you will need to take action. If the individual is an applicant, you will not be able to offer them the role without proof of valid permission to work. For employees who have lost their right to work, either through visa expiry, revocation of permission or other, take professional advice on the situation to avoid issues associated with wider employment law rights such as discrimination claims.
You may also consider your options to report the individual to ensure they do not take up unlawful employment elsewhere.
Failing to perform document checks in the prescribed manner can result in significant fines, criminal sanctions and affect your ability to hire foreign nationals under the points-based system.