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Preventing Illegal Working

The offences

Employing individuals workers who do not have the right to work in the UK can lead to an employer committing a number of different offences.

An employer will commit a civil offence if it employs a person aged 16 years or over who does not have the right to work in the UK in the role they are employed to carry out.  This is pursuant to section 15 of the Immigration, Asylum and Nationality Act 2006 (the "2006 Act") and will occur where the individual does not have leave to enter or remain in the UK or does have leave but it is is invalid, ceased to have effect or subject to conditions preventing the individual from accepting the role in question.

Under section 21 of the 2006 Act it is a criminal offence to employ someone:

  • in the knowledge that they do not have the right to work in the UK; and
  • who you have reasonable cause to believe does not have the right to work in the UK.

The second limb of this criminal offence, having reasonable cause to believe, was introduced by the Immigration Act 2016 and applies to those employed on or after 12 July 2016.

The requirement to check the right to work applies to employers who employ staff under a contract of employment, service or apprenticeship, whether expressed or implied and whether oral or in writing. The Home Office also suggests that its right to work guidance should be followed when using workers who have a genuine self employment status.

Penalties for permitting illegal working

The criminal offence is currently punishable by way of imprisonment for up to 5 years and an unlimited fine.

The maximum civil penalty for employing illegal workers currently stands at £20,000 per illegal worker.

The severity of the penalties has increased over the years and the potential maximum penalty will depend on when the illegal worker's employment commenced, which will determine whether the 2008, 2014 or 2016 codes of practice and corresponding penalties will apply.

 

Date

Maximum Civil Penalty

Maximum Criminal Penalty

Prior to 29.2.08

None

Maximum £5,000 fine

29.2.08 onwards

 

£10,000 per illegal worker

Up to 2 years in prison and/or unlimited fine

16.05.14 onwards

£20,000 per illegal worker

Up to 2 years in prison and/or unlimited fine

12.07.16 onwards

£20,000 per illegal worker

Up to 5 years in prison and/or unlimited fine

 

UK Visas and Immigration ("UKVI") also has the ability to 'name and shame' employers who have received a civil penalty notice for employing illegal workers which can cause serious damage to reputation.

The starting point for the civil penalty is £15,000 per illegal worker if it is the first breach in a three year period.  For a second or subsequent breach in a three year period, the starting point is £20,000 per illegal worker.

There is scope for the penalty to be reduced by £5,000 for each mitigating factor which applies.  These are:

  • evidence of reporting suspected illegal workers;
  • evidence of active cooperation; and
  • evidence of effective right to work checking practices (but only if the above two mitigating factors are also present). 

In certain circumstances, a warning notice and no civil penalty can be received for a first breach.

Further information about the civil penalty scheme can be found here:

https://www.gov.uk/government/publications/illegal-working-penalties-codes-of-practice-for-employers-2018

An employer that persistently fails to comply with illegal working legislation can also receive a business closure notice and an illegal working compliance order.

The statutory excuse

If the employer has carried out a right to work check, in line with UKVI's guidance, it will receive the benefit of the "statutory excuse" pursuant to section 15(3) of the 2006 Act.  The effect of this is that no civil or criminal sanction should be applied.

Also, there is no statutory excuse where the employer knows that the worker does not have the right to work.

In order to obtain the statutory excuse and carry out an appropriate right to work check, evidence of the prospective worker's right to work should be reviewed before employment begins and the three step process should be followed. Alternatively, an employer may carry out a right to work check using the Government's Online Right to Work Checking Service. 

The Three Step Process:

  1. Obtain the worker's original identity documents;
  2. Check the documents are valid with the prospective worker present; and
  3. Copy and keep the documents securely and record the date of the check.

The statutory excuse cannot be established after employment has started which reinforces the need to carry out right to work check before employment commences.

Obtain

UKVI has specified lists of documents which can be accepted and evidence an individual's right to work.  List A details documents which, if provided, establish that the individual has an ongoing entitlement to work in the UK.  These will be applicable where the individual is not subject to immigration control or has no restrictions on their stay in the UK.  List B details documents which, if provided, establish that the individual has a time limited entitlement to work in the UK.  Where documentation from list B is provided, repeat right to work checks will need to be carried out during their employment.

List A:

  1. A passport showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK;
  2. A passport or national identity card showing the holder, or a person named in the passport as the child of the holder, is a national of a European Economic Area country or Switzerland;
  3. A Registration Certificate or Document Certifying Permanent Residence issued by the Home Office to a national of a European Economic Area country or Switzerland;
  4. A Permanent Residence Card issued by the Home Office to the family member of a national a European Economic Area country or Switzerland;
  5. A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK;
  6. A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK;
  7. A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer;
  8. A full birth or adoption certificate issued in the UK which includes the name(s) of at least one of the holder’s parents or adoptive parents, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer;
  9. A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer;
  10. A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.

List B - Group 1 (Documents where a time-limited statutory excuse lasts until the expiry date of leave):

  1. A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question;
  2. A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder which indicates that the named person can currently stay in the UK and is allowed to do the work in question;
  3. A current Residence Card (including an Accession Residence Card or a Derivative Residence Card) issued by the Home Office to a non-European Economic Area national who is a family member of a national of a European Economic Area country or Switzerland or who has a derivative right of residence;
  4. A current Immigration Status Document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.

List B – Group 2 (Documents where a time-limited statutory excuse lasts for 6 months):

  1. A Certificate of Application issued by the Home Office under regulation 17(3) or 18A (2) of the Immigration (European Economic Area) Regulations 2006, to a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old together with a Positive Verification Notice from the Home Office Employer Checking Service;
  2. An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service;
  3. A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question.

Any other documents provided will not alone be sufficient to establish the statutory excuse e.g. driving licence, National Insurance number, Home Office acknowledgement letter.

All prospective workers should be required to provide evidence of their right to work.

Repeat checks are required where the worker presents documents in List B as evidence of their right to work.  If the employment of the individual relying on List B documents commenced prior to 16 May 2014, the repeat check should be carried out every 12 months. However, if the employment commenced on or after 16 May 2014, the repeat checks should be carried out prior to the expiry of the permission or the expiry of the Positive Verification Notice in order to retain the statutory excuse.

Check

The validity and authenticity of all original documents provided must be checked in the presence of the holder:

  • Check any photographs and date of birth to ensure that they are consistent with the appearance of the prospective worker;
  • Check the name to ensure that this matches that of the prospective worker.  If different, further documentation such as a marriage certificate, divorce document, statutory declaration;
  • Check the expiry dates of the document to ensure they have not passed;
  • Check any UK government stamps, endorsements or work restrictions to see if the prospective worker is able to do the type of work the employer is offering; and
  • Check the genuineness of the documents to ensure that they have not been forged or tampered with and belong to the holder.

Copy

A record of the documents checked must be retained.  This can be a hardcopy or a scanned and unalterable copy, such as a jpeg or pdf document. The date that the check was conducted must also be documented, either on the copy document or by holding a separate secure record (manual or digital). The date should be written on the document copy as follows: "the date on which this right to work check was made: [insert date]".

The relevant page or pages of the document should be copied including both sides of a biometric resident permit and the front cover of a passport along with any page containing the holder's personal details and any page containing UK government endorsements or any relevant UK immigration endorsement.

The copies should be kept securely for the duration of the individual's employment and for a further two years after their employment ends.

Employers who acquire staff as a result of a TUPE transfer are provided with a grace period of 60 days to undertake the appropriate documents checks following the date of transfer.

If the prospective worker is not permitted to work, the employer is entitled to refuse employment to that person.

The Employer Checking Service

Where documents in list B – Group 2 are provided, to establish a statutory excuse, it will be necessary to obtain a Positive Verification Notice from the Employer Checking Service on https://www.gov.uk/employee-immigration-employment-status

To carry out this check, the prospective employer needs to obtain the individual's permission before completing the online form.  Where a Positive Verification Notice is received, it can be used in conjunction with a document in list B – Group 2 to establish a statutory excuse for 6 months.  Where a Negative Verification Notice is received, the individual does not have the right to work in the UK and should not be employed.

Further guidance on carrying out right to work checks can be found here –

https://www.gov.uk/government/publications/right-to-work-checks-employers-guide

The Online Right to Work Checking Service

In addition to the existing document-based check as outlined above, an employer may also carry out a right to work check using the Government's Online Right to Work Checking Service which can be found here – 

https://www.gov.uk/prove-right-to-work

The online checking service is free to use and gives employers access to up-to-date information about a migrant's right to work. However, from 28 January 2019, employers will no longer need to rely on physical right to work documentation from prospective employees and can use the online checking service to demonstrate that it has conducted the required right to work checks and has therefore complied with the illegal working legislation, provided that:

  • the individual is a non-EEA national who holds a biometric residence permit or a biometric residence card; or
  • the individual has been granted settled status under the EU Settlement Scheme.

EEA nationals who have not been granted settled status under the EEA scheme are unable to rely on the online checking service and will need to demonstrate their right to work through the appropriate documents, as outlined above.

The online checking service is voluntary and an individual may demonstrate their right to work using either the online service, if they are eligible to do so, or the existing document-based check. Employers who wish to use the online checking service will need to obtain authorisation from the individual prior to carrying out the check.

When relying on the online checking service, an employer must:

  • check that the online checking service confirms that the individual is allowed to work in the UK and undertake the work in question;
  • satisfy itself that the photograph on the online checking service is of the individual in question;
  • retain a copy of the online check for at least two years after the employment ends; and
  • if the individual is a student, obtain the details of their term and vacation dates of their course (see below).

Avoiding allegations of discrimination

To ensure that employers do not discriminate against anyone, all prospective workers should be asked to provide evidence of their right to work.  Assumptions should not be made about an individual's right to work in the UK or their immigration status on the basis of their colour, nationality, ethnic or national origins, accent or length of time they have been resident in the UK.

UKVI has issued a code of practice for employers: Avoiding unlawful discrimination while preventing illegal working and a breach of this code can lead to claims for unlawful discrimination under the Equality Act 2010. This type of claim has no cap on the amount of compensation that can be awarded to a successful claimant.

Individuals who have no right to work in the UK and have entered the UK dishonestly are not automatically prevented from pursuing discrimination claims against their employer or prospective employer.  Such claims can be defeated where the illegality and the discrimination suffered are inextricably linked which could include a dismissal for not having the right to work.

The UKVI code of practice can be found here –

https://www.gov.uk/government/publications/right-to-work-checks-code-of-practice-on-avoiding-discrimination

Employing nationals from the European Economic Area (EEA) and Switzerland

Currently, nationals of countries within the EEA plus Switzerland have no restrictions on their ability to enter and work in the UK.  However right to work checks must still be carried out.  These nationals will usually be able to produce either a national passport or a national identity card.

The following countries are part of the EEA and fall within these rules: 

Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, UK

International Students

In addition to the right to work checks that must be carried out for all prospective workers, employers are also required to obtain additional evidence from students to evidence their academic term and vacation dates. This evidence can be requested from the student directly, but the evidence must originate from the education institution which is sponsoring the student.

The Home Office states the following documents are acceptable evidence:

  • A printout from the student’s education institution’s website or other material published by the institution setting out its timetable for the student’s course of study (check the website to confirm the link is genuine); or
  • A copy of a letter or email addressed to the student from their education institution confirming term time dates for the student’s course; or
  • A letter addressed to you as the employer from the education institution confirming the term time dates for the student’s course.

This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures.  If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist.  ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.