All UK employers have a responsibility to avoid employing illegal workers. By carrying out appropriate document checks, employers may protect themselves from civil penalties and prosecution.
Employers are under a duty to check that every employee has a right to work. You must conduct this check before your employees commence working for you. If you want to employ a worker from outside the European Economic Area, they must obtain, or already have, permission to work.
You must obtain documents from either of the Home Office’s lists, List A or List B. List A is for people who are allowed to work in the UK indefinitely. List B is for people who are only entitled to work for a limited period of time. Obtaining the correct documents and keeping copies in the prescribed format will give you a ‘statutory excuse’ against a civil penalty if you later find out that the worker does not have the right to work. If you do not obtain the exact documents listed, you will not have a statutory excuse for that worker.
You must check the documents in the presence of the holder, and before they start working for you. You must check several properties of the documents. It is good practice to record that you have checked each point.
You must make a clear copy of each document in a format which cannot be altered and retain this copy securely for not less than two years after the employment has come to an end.
If the person has time-limited permission to be in the UK and perform the work, you must carry out additional checks when that permission expires.
It is unlawful to discriminate in employment practices because of race. To avoid discrimination, you should check all potential employees’ right to work documents.
If a potential employee cannot prove their right to work then you should not employ them. If the employee already works for you, has time-limited permission to work and cannot prove their right to work in a follow up check, you should cease employing them.
You can avoid incurring a Civil Penalty by conducting appropriate right to work checks. If you have carried out suitable document checks, you will have a ‘statutory excuse’ and will not be liable for a civil penalty.
Document checks will not protect you against prosecution if you knew the worker did not have permission to work, or if you could reasonably have known.
The Home Office publishes lists of all civil penalties imposed on companies. These are freely accessible to the public using the Home Office website. The Home Office often also issues press releases to local and national media, naming companies that have employed workers illegally.
If you later apply for a Tier 2 or 5 Sponsor Licence with a view to sponsoring foreign workers, any history of employing workers illegally will affect your application.
Our immigration barristers are well versed in all the required right to work checks that employers must undertake. We work closely with businesses to ensure that their HR processes are robust and can help to design and audit current right to work checks in the workplace. We will simplify the process for you and help to protect you and your business from any immigration compliance issues.
We pride ourselves on being approachable and proactive in understanding and meeting our clients’ needs. We are a highly driven team, dedicated to providing clear and reliable immigration advice to employers as part of a professional and friendly service.
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