Employers in the UK are under a statutory obligation to ensure that they only employ workers with the requisite immigration status allowing them to work in the UK. They are therefore required to carry out the right to work checks for anyone whom they are looking to offer an employment or an apprenticeship as we all as those they already employ.
If the employer employs an illegal worker (even unknowingly), they could be subject to a civil fine of up to £20,000 for each illegal worker or, if found guilty of employing someone whom they had a “reasonable cause to believe” did not have the right to work in the UK, could be convicted to a prison sentence of up to 5 years and an unlimited fine. Not mentioning the fact that any sponsor license (tier 2) would be revoked and the Home Office may publish the details of the contravention and penalty imposed on the employer on its website.
If carried out correctly, however, the right to work checks should afford the employer a statutory excuse – defence against prosecution in case they are found, inadvertently or as a result of deception by the employee, to have employed an illegal worker. It is not only essential to carry out these checks prior to the commencement of the employment, but during the course of it as well.
In order to ensure compliance, the Home Office conducts without notice spot checks on businesses. During such a check, the employer is expected to produce documents showing that its employees have the right to perform the work they are currently undertaking.
How to do the Right to Work Checks?
Here are few tips on doing the right to work checks the right way.
- Do not delegate the Right to Work to third parties, such as recruitment agencies, as this will not afford you the statutory excuse in case of a prosecution.
- Obtain original documents in accordance with the Home Office guidance on the Right to Work checks. Only the documents, which are listed in the guidance should be accepted. Any statutory excuse will expire together with the employees’ leave to remain in the UK, and subsequent checks will need to be conducted.
- Check the documents in the presence of the holder to ensure the documents have not expired, and the prospective employee is the person pictured. Employers would not be able to rely on the statutory excuse if it was reasonably apparent that the document produced was falsified.
- Retain a clear copy of the documentation in an electronic or hardcopy format for the duration of the employment and two years subsequently. Record the date the check was carried out and store the documents in an easily accessible place and format, in case the Home Office requests for these to be produced.
You should seek professional advice if you become aware that any of your prospective or current employees do not have a valid right to work.
Contact one of our immigration lawyers if you need any help in doing the right to work checks.