All UK employers are under a duty to prevent illegal working in the UK, regardless of whether they employ foreign nationals. Failure to meet these duties risks enforcement action by the Home Office, including substantial fines.
To comply with the so-called Right to Work requirements, there are practical steps that employers must take to help ensure that everyone they employ has the legal entitlement to work in the UK and to do the job on offer.
The following guide looks at the UK’s prevention of illegal working regime, and the prescribed steps that employers will need to follow to ensure compliance with the rules. We also examine the civil and criminal penalties that could follow for any failure to comply, and how any liability for a civil penalty may be mitigated by the employer.
What is prevention of illegal working?
All employers have a responsibility to prevent those without lawful immigration status from working in the UK. This is known as the prevention of illegal working regime, where the ability to work in the UK without the requisite permission can encourage overseas nationals to break the UK’s immigration laws and provide the practical means for migrants to remain in the UK unlawfully. As such, this often represents the primary driver of illegal migration.
Illegal migration can have various adverse consequences, including the mistreatment of unlawful workers, tax evasion, illegal housing conditions and even modern slavery. It can also undercut legitimate UK businesses and have a negative impact on the employment of people who are in the UK lawfully.
To help prevent illegal working, all employers are required to conduct prescribed right to work checks on each new employee that they hire, regardless of a person’s nationality or ethnic origin, and on any existing employees with a time-limited right to be in the UK. These checks are designed to ensure that individuals are not disqualified from working in the UK, or from doing the work on offer, by reason of their immigration status.
Breaching prevention of illegal working duties
If an employer fails to comply with the rules around the prevention of illegal working, either by not conducting a right to work check or by not doing so correctly, they will be unable to establish a statutory excuse against civil liability. This means that if the employer is found to be employing someone illegally by reason of that person’s immigration status, and they have failed to conduct a compliant right to work check, they could be liable to pay a penalty of up to £20,000 per worker. The code of practice on preventing illegal working (dated 6 April 2022) specifies the various factors to be taken into account by the Home Office in determining the level of civil penalty for employing an illegal worker. Separate online guidance for employers sets out how to conduct right to work checks.
Additionally, if it is apparent that the employer has knowingly employed an illegal worker, or even if they had reasonable cause to believe that a person was disqualified from working by reason of their immigration status, and they employ them anyway, they could be criminally prosecuted. The offence of employing an illegal worker is punishable by either an unlimited fine and/or a term of imprisonment of up to 5 years. For the purposes of proving this offence, a person is disqualified from employment by reason of their immigration status if they are subject to immigration control and have not been granted leave to enter or remain in the UK, their permission to be in the UK is invalid or ceased to have effect, or is subject to a condition preventing the person from accepting the work.
In addition to any civil and criminal penalties that may be imposed on an employer for non-compliance with right to work requirements, other potentially costly consequences arising out of illegal working can include the loss of any Home Office approved sponsor licence. This would mean that the employer would be prevented from sponsoring any new migrant workers or to continue sponsoring any existing migrant workers with a legitimate right to work in the UK. The employer brand is also likely to be badly affected by this.
Can you defend allegations of non-compliance?
When an employer correctly conducts a right to work check as set out in the most up-to-date online Home Office guidance for employers (dated 18 October 2023), this is referred to under the rules as establishing a statutory excuse against liability for a civil penalty.
In circumstances where the employer is hiring someone new, they will establish a statutory excuse if they conduct a prescribed right to work check prior to the start of employment and retain the necessary records of this check to show Home Office compliance officers in the event that they are found to be employing someone illegally. Equally, in circumstances where the employer is continuing to employ someone who has a time-limited right to work in the UK, the employer’s statutory excuse will be retained if a follow-up check is conducted on expiry of the employee’s existing leave to ensure that further leave has been granted.
The illegal working regime is designed to prevent those who are not entitled to work by reason of their immigration status from accessing employment in the UK, but it is not uncommon for illegal workers to use fraudulent documentation or deceptive tactics to deceive employers. This means that illegal workers can occasionally slip through the net. The rules around prescribed right to work checks therefore offer employers statutory protection against a civil penalty, provided they carefully and correctly follow the rules.
Challenging allegations of fraud
Employers must be vigilant when conducting right to work checks, especially manual document checks, where it is incumbent upon an employer to check that the documents are genuine. The employer must also check that the person presenting the documentation is the employee and rightful holder, and permitted to do the type of work on offer. In line with the online guidance, when conducting a manual check, employers are encouraged to verify:
- documents are genuine, have not been tampered with and that they belong to the holder
- photographs and the person’s date of birth are consistent across all documents, and with the person’s appearance, in order to detect any impersonation
- the reasons for any differences in names across documents can be explained by way of evidence, such as an original marriage certificate, divorce decree absolute or deed poll.
When checking the validity of documents, employers should ensure that they do this in the presence of the holder. This can be in person or via a live video link but, in either scenario, the employer must be in physical possession of the original documents. This means that an individual can send their documents by post to enable the employer to conduct the check with them via live video link, but the employer may not rely on the inspection of the document via this link, nor by checking a scanned or faxed copy of the document.
If the employer fails to follow the rules or it is reasonably apparent that the individual presenting the document is not the person referred to in that document, even if the document is genuine itself, they will not be able to establish a statutory excuse against civil liability. Equally, if the employer is given a false document, they will be unable to establish a statutory excuse if it is reasonably apparent that this is fake.
In cases where an employer knows that the documents are false or do not rightfully belong to the holder, and therefore the individual is not permitted to undertake the work in question, the employer will not only fail to establish a statutory excuse because of this, they will also be liable to criminal prosecution for the offence of employing an illegal worker.
How to establish a statutory excuse
To establish a statutory excuse against civil liability, both in relation to initial and follow-up checks, the employer must conduct right to work checks in the prescribed manner. It is only by complying with the online guidance given by the Home Office in respect of how right to work checks are to be conducted that the employer can avoid a civil penalty if they are found to be employing someone illegally by reason of that person’s immigration status.
However, there are various ways in which an employer can conduct a right to work check, depending on a person’s nationality and the way in which their immigration status is held.
In addition to conducting a manual document check by verifying original documents from either Lists A or B of acceptable proof of work documents, the employer may instead conduct a check using the Home Office online right to work checking service or an Identity Document Validation Technology (IDVT) check. Online checks will be needed for individuals whose immigration status is held in digital format, such as an eVisa, where many migrant workers will now only be able to prove their right to work using an online share code. In contrast, an IDVT check is where an employer uses this technology via the services of a certified Identity Service Provider (IDSP) to complete the digital identity verification element of right to work checks for British and Irish citizens only.
It is also open to employers to use the Employer Checking Service (ECS). This is could be used, for example, where an employee has made an in-time application for permission to stay in the UK, but a decision, review or appeal is still pending. In these circumstances, provided the employee’s application was made prior to expiry of their existing leave, the employer can ask the Home Office using its ECS online form to verify the employee’s right to work in the UK and to do the work on offer. In cases where an employee is entitled to work, the Home Office will issue a positive verification notice (PVN), in this way providing the employer with a time-limited statutory excuse for a period of 6 months.
In all cases, where the right to work check reveals a time-limited right to work in the UK, or otherwise results in a time-limited statutory excuse, the employer must conduct a follow-up check at the appropriate stage to retain their statutory excuse against civil liability.
Importantly, employers cannot mandate how someone proves their right to work, where employees must be given every opportunity to prove their legal entitlement to work in the UK, and to do the work on offer, so as not to inadvertently discriminate against anyone. Increasingly, the Home Office is issuing eVisas rather than physical documentation as proof of immigration status. This means that these individuals will only be able to evidence their right to work using a share code generated by the Home Office online checking service.
The employer must also make a clear copy of each right to work check, recording the date on which a check is made and retaining this in a format that cannot be altered.
Reduce risks of illegal working penalties
There are three stages to any Home Office determination around illegal working. This means that if an employer has been found to be employing someone illegally, the Home Office will first determine whether or not the employer can establish a statutory excuse against liability for a civil penalty. Secondly, they will look at whether the employer has been found to be employing illegal workers within the previous 3 years, where this will determine the level of the breach and applicable starting penalty. Finally, in the third stage of its consideration, the Home Office will assess if there are any mitigating factors.
Depending on the level of breach, if the employer is able to demonstrate that they reported a suspected illegal worker prior to discovery and actively co-operated with the Home Office, these factors can each reduce the civil penalty by £5,000. However, if an employer can additionally show that they have effective right to work checking practices in place, their penalty will be reduced to the minimum level of a warning notice, although this will only apply if they have not been found to be employing illegal workers within the past 3 years.
Need assistance?
DavidsonMorris are specialist business immigration legal advisers, working with UK employers to ensure compliance with their duties to prevent illegal working.
All staff involved in recruitment and onboarding (which may not just be HR and line managers) should be trained to perform the checks correctly and consistently. Regular spot-checks of documents should also be conducted by HR to ensure standards are being maintained and to identify any potential issues to be rectified. And while employers are not expected to show expert levels of fraud detection, there are certain expectations to discharge their duty under the prevention of illegal working regime.
Our Right to Work e-learning offers employers a practical way to roll out immigration compliance training to all required personnel at a fixed cost.
If you have a question about any aspect of Right to Work checks and avoiding Home Office penalties, or for more information about our e-learning programme, contact us.
Prevention of illegal working FAQs
What is the code of practice for illegal working?
The code of practice on preventing illegal working issued under the Immigration, Asylum and Nationality Act 2006 specifies the factors to be considered by the Home Office in deciding the level of civil penalty for employing an illegal worker.
What happens if an illegal immigrant is caught working illegally in UK?
If someone is caught working illegally in the UK, unless the employer can establish a statutory excuse against civil liability by showing they conducted a compliant right to work check, the employer will be subject to a hefty civil penalty.
What is the definition of illegal working?
Illegal working is where a person who is subject to immigration control works at a time when they are disqualified from working because of their immigration status, and they know or have reasonable cause to believe that they are disqualified.
How do I report someone working illegally in the UK?
An employer can report a suspected illegal worker to the Sponsorship and Employers’ Helpline. If they do this before that worker is discovered by the Home Office, obtaining a unique reference number, any civil penalty will be reduced by £5,000.
Last updated: 26 October 2023
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
