The law on preventing illegal working is set out under section 15-25 of the Immigration, Asylum and Nationality Act 2006, section 24B of the Immigration Act 1971, and Schedule 6 of the Immigration Act 2016.
Penalties
If an employer is found to be employing someone illegally and the employer did not carry out the prescribed right to work checks, it may face the following sanctions:
- a civil penalty of up to £20,000 per illegal worker;
- in serious cases, a criminal conviction carrying a prison sentence of up to 5 years and an uncapped fine;
- closure of the business and a compliance order issued by the court;
- disqualification as a director;
- not being able to sponsor migrants;
- seizure of earnings made as a result of illegal working; and
- a review and possible revocation of a licence in the alcohol and late-night refreshment sector and the private vehicle and taxi sector.
In order to avoid such penalties, it is crucial for employers in the UK to carry out the necessary right to work checks and to maintain personnel records as set out below.
Statutory excuse
Carrying out right to work checks and being able to demonstrate this through correctly maintained personnel records of all employees allows employers to be granted a statutory excuse under the Code of Practice on Preventing Illegal Working for Employers.
In order to establish a statutory excuse against a civil penalty in the event that an employee is found to be working illegally, employers must do one of the following before the employee commences employment:
- a manual right to work check using the three steps process (obtain, check and copy);
- a right to work check using IDVT via the services of an IDSP; or
- a Home Office online right to work check
Conducting any of these checks as set out in the Home Office guidance will provide the employer with a statutory excuse.
The right to work check
Checks need to be carried out on all people before they start working to avoid discrimination. Employers should not make presumptions about a person’s right to work in the UK on the basis of their background, appearance or accent.
To find out which documents employers can check, please check Annex A to F of the Home Office guidance.
Demonstrating that the employer complied with the prescribed requirements can only be done through maintaining personnel records on the right to work of all employees.
Maintaining Personnel Records for all employees – legal requirements
The employer is required to keep a record of every document that was checked as part of the Right to Work check. This can be in either a hardcopy or a scanned copy format, which cannot be manually altered, such as a jpeg or pdf document. With online right to work checks, the profile page can be printed or saved as a PDF or HTML file.
These copies should be kept securely for the duration of the employee’s employment and for a further two years after they stop working for the employer. The employer should be able to produce these document copies promptly in the event they are requested to demonstrate that they performed a right to work check.
A note of the date on which the right to work check was conducted also has to be recorded. This can be made with a dated declaration on the document copy or by holding a separate record, securely, which can be shown to the Home Office on request.
Any date for follow-up checks must be recorded and added to a diary or calendar.
Follow up checks
For those employees who have time-limited permission to work in the UK, the employer will have to recheck the right to work of these employees.
This follow up right to work check requires the same retention of documents for the personnel records as when the first right to work check was conducted before the start of employment. We would advise that you diarise a repeat check at the point of expiry.
Audit
We can assist with conducting an audit of personnel records to determine whether the personnel records are being maintained sufficiently and to flag up any improvements that could be made. This is particularly advisable if you are thinking of applying for a Sponsor Licence.
For further information and advice on right to work checks or other immigration queries or to apply for a Sponsor Licence for your company, please contact the Employment and Immigration Team.
The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice specific to your situation and should not be relied upon. Appropriate legal advice should be sought for your specific circumstances and before any action is taken.
© Miller Rosenfalck LLP, July 2022