The Home Office has issued detailed guidance for Employers on Preventing Illegal Workers in the UK as governed by The Immigration, Asylum and Nationality Act 2006. This sets out the checks required by Employers and the acceptable documents to prove that someone has the right to work in the UK. Breaches of the legislation can be costly in terms of financial penalties and in serious cases can lead to a prison sentence or closure of your business.
The purpose of the Legislation is to prevent harmful effects on the UK economy, such as undercutting British businesses and exploiting illegal migrants, sometimes working in dangerous conditions, by paying less than the minimum wage and not paying PAYE or NI contributions.
Duty is on the Employer
Before someone starts work, you should take copies of their right to work documents and this should be repeated if the person has a limited right to stay. As part of this process, you must see the original documents and you must also check that there are no restrictions, such as the type of work which can be undertaken or amount of hours that can be worked.
The guidance sets out in detail the right to work documents:
List A documents are those which show the holder is not subject to immigration controls or has no restrictions on their stay. These will include passports showing that the holder is a British citizen with a right of abode in the UK, a Certificate of Entitlement to the Right of Abode, a Residence Permit issued by the Home Office to a national of an EEA country or Switzerland, a Biometric Residence Permit. (The full list can be found in the Guidance)
List B documents are those which show that the person is allowed to work in the UK for a limited period of time. These will include a passport, travel document, Biometric Residence Permit (showing that the holder is allowed to stay in the UK and undertake the type of work offered), or a work permit together with a passport or other travel document. The full list can be found in the Guidance.
There are specific rules for the employment of students (who will normally be restricted to 20 hours work per week) outside of term time and must have valid leave.
The 3 step process
Step 1: You must receive ORIGINAL acceptable documents.
Step 2: You must take all reasonable steps to check that the document is genuine AND that the holder is the person named in the document AND that the document allows them to do the work in question.
Step 3: You must take and retain copies of the documents in a format which cannot later be altered.
When following these steps, it is recommended that you follow the “Employers Right to Work Checklist” contained in the guidance.
Penalties for breach
It is an offence to employ an illegal worker and, if it’s proved that you knowingly did so, you may face prosecution. Serious cases can be referred to the Crown Court, where the maximum sentence is a period of 5 years’ imprisonment and an unlimited fine, or both.
Many cases are dealt with by the serving of a Fixed Penalty Notice. The maximum amount of the penalty is £20,000 for each illegal worker but the level of the penalty can be mitigated if, for example, you have evidence of having reported suspicions about an employee’s right to work and/or evidence of active co-operation with the Home Office. The mitigation can amount to £5000 per factor so these are important matters to bear in mind; however a discount for early settlement of the penalty is normally offered. You are offered the opportunity to make representations against a Notice and, if unsuccessful, a right of appeal to the County Court (but be warned, as this can be a costly exercise).
Effect on Licensed Premises
From a recent case involving East Lindsey Council, the High Court considered an appeal against the revocation of a Premises Licence issued under the Licensing Act 2003. In this particular case, a restaurant owner had employed an illegal worker and received a Civil Penalty Notice. The police applied to review the licence and Court considered that the Crime Prevention objective was engaged because of the Penalty Notice, and it wasn’t necessary for a conviction for a criminal prosecution to be in place.
The Court ruled that a deterrent approach was justified (on the facts of this particular case) and that the decision to revoke the licence was appropriate.