In an effort to combat illegal working and ensure fair labour practices, the Government has introduced its Right to Work Scheme, a series of regulations regarding the employment eligibility of workers.
What is the Right to Work Scheme?
Illegal working can lead to exploitative working conditions, labour market abuse and national minimum wage breaches. Therefore, all UK employers have an obligation to prevent illegal working.
A new Code of Practice has been issued by the Home Office and will take effect from 13 February 2024. It sets out the civil penalties which may be imposed by the Home Office for employing illegal workers and how such penalties are calculated.
There is also an Employer’s Guide on Right to Work Checks available on the government website, which explains in detail how right to work checks should be conducted.
What is the current law on conducting right to work checks?
Employers must check that every person they hire has the right to carry out the required work before they commence their employment.
To do this, employers must carry out one of three types of compliant right to work checks:
1. Manual right to work check – applicable to all individuals
A manual right to work check involves three steps:
- Obtain original documents from either List A or List B of acceptable documents at Annex A of the employer’s guide.
- Check that the documents are genuine, that they allow the individual to carry out the required work and that the person presenting the documents is the person you are hiring.
- Copy each document clearly in a format which cannot be manually altered, recording the date of the check and retain the copies securely until two years after the end of the individual’s employment.
2. Right to work check using Identity Document Validation Technology (IDVT) via an Identity Service Provider (IDSP) – only applicable to British and Irish citizens who have a valid passport
A list of certified IDSPs can be found on the government website.
When using an IDSP, the employer is still responsible for obtaining and recording evidence of the IDVT check and satisfying themselves that the photograph and biographic details revealed match the individual.
3. Home Office online right to work check – applicable to individuals whose immigration status can be checked online (e.g. individuals with settled status or biometric residence permits)
This involves the individual obtaining a 90-day share code which allows the employer to check their immigration status. The individual’s ‘profile’ page should be checked by the employer and a copy retained. There is no requirement to obtain original documents as the information is shown in real time directly from Home Office data.
Even if you do not directly employ individuals who work for you, it is advisable to check that compliant right to work checks have been completed to ensure compliance with health and safety obligations and protect against disruption and damage to reputation caused by illegal workers.
What are the new penalties for employing illegal workers?
If you employ someone who does not have the right to work in the UK, the Home Office can administer a civil penalty under s 19 Immigration, Asylum and Nationality Act 2006.
From 13 February 2024, the civil penalty amount will increase to:
- £45,000 per illegal worker in respect of a first breach (previously £15,000 per illegal worker)
- £60,000 per illegal worker for repeat breaches within 3 years (previously £20,000 per illegal worker)
When determining the penalty amount, the Home Office considers the circumstances of each case, including the employer’s compliance history and any mitigating factors.
How can the illegal working penalties be avoided?
The above penalties for illegal working can be avoided if the employer can establish a statutory excuse.
An employer will have a statutory excuse if they have carried out a compliant right to work check in accordance with Home Office guidance.
Depending on the individual’s immigration status, the statutory excuse may be continuous or time-limited.
If an individual’s right to work is time-limited, you must carry out a follow up check upon their visa expiry. The statutory excuse will continue for a further 28 days to allow you to complete a Home Office online check or contact the Employer Checking Service.
How can a Right to Work audit ensure compliance?
In addition to the civil penalties outlined above, you may face the following sanctions if you fail to complete a right to work check and employ someone illegally:
- 5 years’ imprisonment and/or an unlimited fine for the criminal offence of knowingly employing a worker illegally
- Closure of business and compliance order issued by the court for the purpose of Home Office investigations
- Disqualification as a company director
- Revocation of your sponsor licence to employ overseas workers
- Seizure of earnings made from illegal working
Therefore, it is essential that employers are aware of their obligations and know how to complete legally compliant right to work checks.
Arranging a right to work audit will enable us to review your current practices and procedures to ensure that they comply with Home Office requirements, protecting your business against the risk of costly penalties.
Right to work audits are even more important for employers who engage overseas workers under a sponsor licence, as the Home Office may conduct a compliance visit as part of the application or renewal process.
Our Business Immigration team at Aaron & Partners can do compliance checks on immigration documents and right to work checks for your business. For more information, please get in touch.
Adam Haines
Employment Law and Business Immigration Partner
Adam is a partner and specialist employment lawyer with experience advising on all aspects of employment law from the beginning to the end of the employment relationship and business immigration.
