HM Insights

Do your employees have the right to work in the UK? An employer's role in preventing illegal working

An Edinburgh restaurant is facing fines of up to £80,000 after Home Office Investigators conducted a raid and found four illegal workers employed at the premises. The Indian restaurant was closed at around 5pm on a busy Saturday as immigration officers descended following a tip-off.

Employers in the UK have a legal duty under the Immigration, Asylum and Nationality Act 2006 to check whether both current and prospective employees require permission to work in the UK.

While currently British citizens (and those with UK residency rights), European Economic Area (EEA) and Swiss nationals, and their spouses, civil partners and dependent children all enjoy full employment rights in the UK, non EEA-nationals will be unable to work in the UK without prior Home Officer permission. Individuals who flee to the UK as 'asylum seekers' do not normally have the right to work in the UK until their application has been accepted by the Home Office and they have been granted 'refugee' status. In some situations, where refugee status has not been granted, the Home Office have the discretion to grant 'humanitarian protection' to these individuals which entitle full rights to work.

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Penalties for non-compliance

Employers are liable to civil and criminal penalties if they employ an individual who does not have permission to work in the UK. Fines of up to £20,000 per illegal worker can be imposed, however provided an employer has carried out the necessary document checks, and repeated checks where applicable, a defence will be available if it subsequently appears that they have employed an illegal migrant worker. This defence is only available where the employer in question completed the necessary checks and genuinely believed that the employee has the right to work in the UK.

New right-to-work checking system in 2019

In January this year the Government implemented a range of changes designed to modernise the right to work checks required of employers. With an increasingly straightforward system comes a greater expectation on employers to meet their obligations to ensure that compliance checks are carried out fully and properly.

The changes include the introduction of an online service to conduct the necessary right to work checks which is designed to eliminate the need to inspect and retain physical documents, and instead provide employers with up-to-date information about an employee’s right to work through an online portal. This service is not available for all employees, however, and where it cannot be used employers must simply conduct a manual check.

If right to work checks are carried out correctly, an employer will have a statutory excuse against a civil penalty should it transpire that an individual is not in fact entitled to work in the UK.

Avoiding discrimination

Employers have a key role to play in preventing illegal working in the UK and should dedicate sufficient time and resources to carry out right-to-work checks on people before employing them, and ensure they are allowed to do the work in question. It is equally important that employers avoid discrimination when carrying out the necessary checks. The best way is for employers to make sure that they treat all job applicants in the same way at every stage of the recruitment process.

Get in touch

If you have any concerns about your business' compliance with immigration legislation, or require further right to work checks, please contact the team.

 

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