Clarkslegal LLP - Solicitors in Reading and London

UK Immigration

Right to Work Checks – Employer’s Obligations

As a UK employer, you have a statutory duty to prevent illegal working in the UK. It is your responsibility to ensure that your employees have the right to work in the UK by first checking they have the correct permission and second, by retaining documentary evidence of their eligibility. By conducting right to work checks correctly, you will have discharged your statutory duty and will have obtained a statutory excuse against liability for a civil penalty of up to a maximum of £20,000 per illegal worker and possible criminal sanctions.

In April 2017, Immigration Minister Robert Goodwill revealed that 60% of all civil penalties for illegal working issued in the UK in the year to February 2017 were issued in the retail, hotel, restaurant and leisure industry sectors. We advise that you have a strict policy of carrying out pre-employment checks and this policy is enforced across the board, from the appointment of a hotel chain’s CEO down to staff engaged in the kitchens.

What is a Right to Work Check?

A Right to Work Checks means that you check a document which is acceptable for showing permission to work. You must do this before you employ a person and you may also be required to carry out follow up checks on employees who have time limited permission to work in the UK.

Generally, checking a person’s documents to determine if they have the right to carry out the type of work you are offering, comprises of 3 key steps: 

  • Obtaining the person’s original document;
  • Checking them in the presence of the holder; and
  • Making and retaining a clear copy, and making a record of the date of the check. 

What are the consequences of non-compliance?

Recent changes to the legislation and an increase in the number of civil penalties issued by the Home Office mean that it is becoming increasingly important that all employers have a robust administrative process to ensure all their employees have the right to work in the UK.

In addition to fines of up to £20,000 per illegal worker, you could also be committing a criminal offence if you know or have reasonable cause to believe that you are employing an illegal worker. In this scenario, you could face up to 5 years’ imprisonment and/or an unlimited fine.

There are also an increasing number of reports where the Insolvency Service has taken action and removed directors (in particular restaurant directors) from the market place, regardless of whether the company was in liquidation or not.

New measures also came into force in April 2017 giving immigration officers more powers to tackle illegal working in licenced premises. Under the measures, immigration checks are now part of the process for applying for a licence and licences will not be granted to those who do not have valid leave. Further, if a business has any immigration offences and civil penalties, these will be considered as part of the licence application. Immigration officers will also be allowed to enter premises being used to sell alcohol or late night refreshment in order to investigate immigration offences.  

How can I Stay Compliant?

Given the government’s commitment to crackdown on illegal working, it is vital for you as an employer to ensure that you are complying with immigration laws and staff involved in recruitment have been provided with the skills and equipment needed to ensure that your business remains compliant.

Those involved in carrying out right to work checks should be aware of the relevant government guidance and should understand how to follow the process and retain documents so a statutory excuse can be relied on if required in the future. Your staff handbook should include policies and procedures to ensure everyone in your organisation knows their obligations in respect of right to work checks.

If you have any concerns, we would recommend carrying out an audit on your personnel files and taking immediate action to remedy any issues.

Our business immigration team can assist you by training your recruitment staff and HR on how to carry out prescribed document checks to ensure future compliance with UK immigration. We can also be instructed to carry out an audit on your personnel files and report on any issues/concerns and make recommendations on how to improve your current processes to ensure full compliance with immigration laws.