Employer’s duty to prevent illegal working
UK employers have a duty to prevent illegal working in the UK by people who are subject to immigration control. Where this is not complied with, an employer may face a financial penalty (civil penalty) and in some cases, prosecution. An employer can avoid becoming liable for a civil penalty and prosecution by carrying out simple specified document checks on prospective employees before employing them, to ensure that they have the right to work in the UK.
Employers are required to undertake document checks on all prospective employees irrespective of their race, place of birth or apparent nationality before employing them. If the employee is not subject to UK immigration control, the employer is not required to carry out any further checks on this person. However if there are restrictions on the employee’s right to work in the UK, a follow up check needs to be carried out before their permission to be in the UK and to work expires.
Who is not subject to UK immigration control?
The following categories of individuals are not subject to UK immigration control:
- British citizens;
- Commonwealth citizens and citizens of the UK and Colonies with the right of abode in the UK;
- Nationals from the Common Travel Area (Ireland, Isle of Man and the Channel Islands);
- Nationals from European Economic Area (EEA) and Switzerland (except for Croatian nationals (until 30 June 2017); and
- Non EEA family members of nationals from EEA countries and Switzerland, if the EEA national is lawfully residing in the UK.
How to conduct a right to work check?
There are 3 basic steps to conducting a right to work check:
- Obtain original versions of one or more of the acceptable documents;
- Check the documents in the presence of the holder of the documents;
- Make copies of the documents, retain the copies and a record of the date on which the check is made. If the person is a student subject to a condition limiting the number of hours they can work per week during term time, obtain and retain details of their term and vacation dates.
What documents should be requested from the employee?
The documents that are considered acceptable for demonstrating right to work in the UK are set out in two lists – List A and List B – in Annex A of the Home Office Sponsor Guidance. List A contains the range of documents which may be acceptable for checking purpose for a person who has a permanent right to work in the UK. List B contains the range of documents which may be accepted for checking purposes for a person who has a temporary right to work in the UK.
The employer needs to check the documents as set out in List A or List B. Seeing other documents, such as those below, will NOT constitute a right to work check:
- a Home Office Standard Acknowledgement Letter or Immigration Service Letter (IS96W) which states that an asylum seeker can work in the UK;
- a short (abbreviated) birth or adoption certificate issued in the UK;
- a National Insurance (NINo) number when presented in any format on its own;
- a card or certificate issued by HM Revenue and Customs (HMRC) under the Construction Industry Scheme;
- a full or provisional UK driving licence issued by the Driver and Vehicle Licensing Agency (DVLA) or the Driver and Vehicle Agency (DVA);
- a licence provided by the Security Industry Authority;
- a document check by the Disclosure and Barring Service (formerly the Criminal Records Bureau);
- a document that has been certified as a true copy by a solicitor or notary public; or
- a bill issued by a financial institution or a utility company.
Since 16th May 2014, the below documents are not acceptable for providing a right to work in the UK:
- A UK issued travel document which is not itself a passport;
- Work permits; and
- General Home Office letters.
How to check 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 of the employee’s right to work in the UK have not expired;
- The photographs are the same across all documents and look like the applicant;
- Dates of birth are the same across all documents;
- The person has permission to do the type of work you are offering (including any limits on the number of hours they can work);
- For students, you see evidence of their study and vacation times;
- If two documents given different names, the person has supporting documents showing why they are different, i.e. marriage certificate or divorce decree.
For how long do the documents need to be retained?
You must keep clear document copies for the duration of the individual’s employment and for a further two years after they leave your employment. The may be retained electronically in a format that cannot be changed or in hard copy.
What to do if the prospective employee cannot show their documents?
The onus is on the prospective employee to provide you with the correct documentary evidence that they are allowed to do the job in question. While you should try to keep the job open for as long as possible to provide them with the opportunity to demonstrate their right to work, you are not obliged to do so if you need to recruit someone quickly.
If the employee has made an immigration application, or has an appeal with the Home Office which is still pending, you can obtain a Positive Verification Notice from the Home Office Employer Checking Service confirming the person’s right to work.
In respect of prospective employees, the Positive Verification Notice must be obtained before employment commences. In respect of repeat works for existing employees, you must contact the Employer Checking Service within 28 days of the expiry date of the employee’s permission.
The Employer Checking Service should provide a result within five working days of your application.
For expert advice in relation to conducting employee right to work checks, or any other aspect of business immigration law, contact our business immigration barristers in London.