Employers are under a duty to check that every employee has a right to work. You must conduct this check before your employees commence working for you. If you want to employ a worker from outside the European Economic Area, they must obtain, or already have, permission to work.
You must obtain documents from either of the Home Office’s lists, List A or List B. List A is for people who are allowed to work in the UK indefinitely. List B is for people who are only entitled to work for a limited period of time. Obtaining the correct documents and keeping copies in the prescribed format will give you a ‘statutory excuse’ against a civil penalty if you later find out that the worker does not have the right to work. If you do not obtain the exact documents listed, you will not have a statutory excuse for that worker.
You must check the documents in the presence of the holder, and before they start working for you. You must check several properties of the documents. It is good practice to record that you have checked each point.
You must make a clear copy of each document in a format that cannot be altered and retain this copy securely for not less than two years after the employment has come to an end.
If the person has time-limited permission to be in the UK and perform the work, you must carry out additional checks when that permission expires.
It is unlawful to discriminate in employment practices because of race. To avoid discrimination, you should check all potential employees’ right-to-work documents.
If a potential employee cannot prove their right to work then you should not employ them. If the employee already works for you, has time-limited permission to work, and cannot prove their right to work in a follow-up check, you should cease employing them.
The Home Office will send you a notice telling you that your case is being referred to officials who will consider your liability for a civil penalty. If you do not think that you are liable for the civil penalty, you can object to the Home Office or appeal to a court if:
– You are not liable to pay the penalty (e.g. you are not the worker’s employer);
– You have a statutory excuse (you undertook the correct document checks); or
– The level of the penalty is too high (e.g. the Home Office did not take mitigating circumstances into account).
– The maximum penalty you can be made to pay is £20,000 per illegal worker (£5,000 if they are Croatian). The amount you will have to pay will depend on whether you have been found to employ illegal workers before, whether you have reported the illegal worker to the Home Office, whether you have co-operated with the Home Office, and whether you generally comply with your employer duties to prevent illegal working.
Whether you have to pay a civil penalty, and how much, will also depend on when the employee commenced working with you.
There are options to pay a reduced penalty if you pay quickly, or pay by installments. If you do not pay the penalty, object or appeal by the due dates, the Home Office will commence court action against you. If the Home Office is successful, you will have a County Court Judgment against you. This may impact upon your credit rating and affect your ability to act as a company director.
It is also a criminal offence to knowingly employ an illegal worker, or employ an illegal worker where you had reasonable cause to believe that they did not have the right to work in the UK. You may face up to five years imprisonment and/or an unlimited fine.
UKVI may also visit your business premises to carry out checks before a decision on your sponsor licence application is made. Our immigration barristers can draw on their experience of Home Office compliance requirements to conduct an immigration audit of your business ahead of any Home Office inspection.
When UKVI compliance officers visit your business premises they will check that:
– Information that has been given to UKVI is accurate and complete.
– You are able to offer employment at the Tier 2 skill level.
– You are genuine and trading or operating lawfully in the UK.
– There are no reasons to believe you represent a threat to immigration control.
– You are committed to, and actually are, complying with all the duties of sponsorship.
– You can expect your record-keeping, reporting, and immigration status monitoring processes and documentation to be reviewed in order to ensure that you remain compliant.
The compliance officer may not give an indication of their assessment or your ability to comply with sponsor duties during the visit.