Prevention of Illegal Working Legislation
There is no legal requirement for an employer to carry out Right to Work Checks (unless they hold a sponsor licence). However, in order to obtain protection against sanctions under illegal working legislation in the UK, employers are advised to carry out such checks on all prospective employees, regardless of their nationality, place of birth or race etc. If a prospective employee is subject to immigration control, the employer must ensure that the individual has the right to work in the UK and is doing so in line with their conditions of stay before commencing employment. Where an employer fails to comply with this duty they may become liable for a civil penalty.
The law on preventing illegal working in the UK is set out in sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 (‘the 2006 Act’). Employers that wish to benefit from the protection of a statutory excuse in the event of a civil penalty for an illegal working offence must carry out a document check to confirm that the prospective employee has the right to work in the UK. This is also known as a Right to Work Check.
A Right to Work Check consists of the following three basic steps:
- obtain original versions of the acceptable documents from the prospective employee;
- check that the documents are valid whilst the employee is present; and
- make and retain copies of the documents along with a record of the date on which the check was made.
If the prospective employee is not subject to immigration control, the initial Right to Work Check carried out before employment commences will be enough to comply with the duty. However, individuals who are subject to immigration control will require further checks before their leave to remain and right to work in the UK expires.
For those employers that hold a sponsor licence, complying with the prevention of illegal working legislation is a duty of sponsorship. Employing illegal workers or failing to carry out Right to Work Checks could lead to a sponsor licence suspension or revocation.
Who is subject to immigration control?
A person is subject to immigration control if they require leave to enter or remain in the UK (whether or not such leave has been given).
The following individuals are not subject to UK immigration control:
- British citizens;
- Nationals of the Common Travel Area;
- Commonwealth citizens and citizens of the UK and Colonies with the right of abode; and
- EEA nationals and national of Switzerland and their family members (although this will change as a result of the UK’s decision to leave the EU).
Employees without acceptable documents
It is the responsibility of the employee to provide acceptable documents as evidence of their right to work in the UK. If a current employee has made an application for further leave to remain or has an appeal pending with the Home Office an Employer can use the Employer Checking Service to confirm whether the individual has the right to work in the UK. However, evidence of right to work must be obtained before a prospective employee commences employment.
If an existing employee cannot provide acceptable evidence of their right to work in the UK, an employer should still exercise caution before terminating the employment contact. Recent case law has highlighted that dismissal on the grounds of illegality as a result of the failure of an employee to produce evidence of their right to work may be unfair and as such may leave the employer open to a claim for unfair dismissal. Of course, continuing employment when a person does not have valid leave in the UK is a criminal offence and usually termination, if appropriate, would need to be on the basis of Some Other Substantial Reason (SOSR) following a thorough investigation by the employer.
Prevention of Illegal Working Legislation: How we can help
Our immigration experts are able to provide advice and guidance in relation to an employer’s duties under the right to work legislation to ensure that they are complying with their duties and are able to establish a statutory excuse when necessary.
If your organisation requires legal assistance in this area or would just like to discuss your situation with a member of our team on a no-obligation basis, please contact us.