Illegal Immigration: UK Employer Responsibilities

Illegal immigration refers to individuals residing or working in the UK without legal authorisation. For employers, hiring workers without the legal right to work poses significant legal, financial, and reputational risks. Ensuring compliance with immigration laws is essential to avoid penalties and maintain lawful employment practices.

As a UK employer you are under a duty to prevent illegal immigration by carrying out right to work checks. In this way you can ensure that both prospective and existing employees are lawfully allowed to work in the UK and undertake the work on offer. These checks involve verifying an individual’s immigration status through acceptable documents or the Home Office’s online Right to Work service. Failing to carry out these checks correctly, or hiring someone who does not have the right to work, can result in enforcement action, such as substantial fines. In serious cases, employers may face criminal charges, leading to unlimited fines or imprisonment.

Employers must also be aware of ongoing compliance obligations, such as rechecking the work status of employees with time-limited visas. Record-keeping is crucial, as evidence of compliant right to work checks provides a statutory excuse against penalties.

 

Illegal immigration obligations on employers

 

Employers in the UK have legal responsibilities to prevent illegal working by ensuring that anyone they employ has the right to work in the country. These obligations are set out under the Immigration, Asylum and Nationality Act 2006 and aim to maintain a fair labour market while deterring illegal immigration.

Employers must monitor the immigration status of employees with time-limited work permissions. Follow-up checks are required before the individual’s current permission expires to confirm their ongoing right to work.

If an employer discovers that an employee does not have the right to work, they must take immediate action. This includes ending the employment relationship, reporting the matter to the Home Office, and reviewing internal procedures to prevent future breaches. Employers must act lawfully and document their actions to ensure compliance.

Employers should also be prepared for potential Home Office inspections, during which evidence of compliance will be reviewed.

Employers who fail to comply face significant financial penalties, reputational damage, and, in severe cases, criminal prosecution.

Employers should provide training to HR and recruitment teams to ensure that right to work checks are conducted consistently and correctly. Clear internal policies help minimise errors and establish accountability within the organisation. Using standardised processes for verifying documents and maintaining records can further reduce risks.

 

How to avoid illegal immigration in the workplace

 

Right to work checks have to be carried out for all prospective and existing employees. The Home Office provides guidance for employers on how to conduct document checks correctly.

Right to work checks must be conducted before the individual begins employment. For employees with time-limited work permissions, employers are required to recheck their status before the permission expires to confirm their ongoing eligibility to work.

Carrying out right to work checks properly, and where necessary rechecking status, you should be able to establish a statutory excuse in the event an individual is found to be working illegally. This means you should be able to provide a defence to an allegation that you have employed someone illegally.

Responsibility for performing right to work checks is with the employer. You cannot delegate this responsibility to a third party such as a recruitment agency. If a third party conducts the checks on your behalf, you will be unable to establish a statutory excuse in the event that the check is not carried out correctly and the employee in question is found to be working illegally.

 

How to carry out right to work checks

 

Employers can complete right to work checks manually, online, or using certified Identity Service Providers (IDSPs) for certain types of workers. Methods of conducting right to work checks include:

 

Check Type	Description	Who It Applies To
Manual Right-to-Work Check	Employers review original documents from the Home Office’s acceptable documents list. Copies are retained as evidence, and the check date is recorded.	– British and Irish nationals (e.g., passports or birth certificates). – Non-digital immigration status holders (e.g., BRPs, visas).
Online Right-to-Work Check (Share Codes)	Employers use the Home Office’s online Right to Work service. The individual provides a share code and date of birth, allowing the employer to access their digital immigration status.	– Individuals with an eVisa. – EU, EEA, and Swiss citizens with settled/pre-settled status. – Non-UK citizens holding BRPs or digital immigration status.
Digital Right-to-Work Check (IDSPs)	Employers use certified Identity Service Providers (IDSPs) to verify identity and right to work using digital documents. Only valid for specific document types.	– British and Irish nationals with valid passports. – Does not apply to individuals with non-digital immigration status.
Employer Checking Service (ECS)	Employers contact the Home Office to verify right to work when an individual cannot provide acceptable documents or their status is pending.	– Individuals awaiting a decision on their visa/immigration application. – Individuals who have lost or do not hold acceptable documents.

 

 

Manual Right to Work Checks

 

Employers must request and examine original documents from the list of acceptable documents provided by the Home Office. These include passports, biometric residence permits (BRPs), or other documents proving immigration status.

Once verified, employers must take a copy of the document and retain it securely. The copy should include a clear record of the date the check was completed, ensuring it can be presented if required by the Home Office.

Employers should verify that the documents are valid, unaltered, and belong to the employee. This includes checking photographs, dates of birth, and expiry dates.

 

Online Right to Work Checks

 

For individuals with a digital immigration status, such as those who hold an eVisa or have updated to digital records, employers must use the Home Office’s online Right to Work service.

Employees provide a share code, which employers use along with the individual’s date of birth to access their immigration status via the online system.

The system generates a confirmation of the individual’s right to work, which must be retained as evidence.

 

Digital Right to Work Checks

 

For British and Irish nationals, employers can use Identity Service Providers (IDSPs) to verify the individual’s identity and check their right to work using digital copies of passports. This process is only applicable to those who have valid UK or Irish passports and is designed to streamline the verification process.

 

Employer Checking Service

 

Home Office Employer Checking Service to verify the individual’s right to work, for example if the worker has EU settled status or if they have a Home Office application pending.

 

Civil sanctions against employers for illegal immigration

 

Under the Immigration, Asylum and Nationality Act 2006 you may be liable for a civil penalty if you employ someone who does not have permission to work in the UK or undertake the work on offer.

By carrying out a prescribed document check you may be able to establish a statutory excuse, save except where you knew or it was reasonably apparent that the documentation checked was not genuine, did not rightfully belong to the holder or the work was not permitted.

When checking an employee’s proof of right to work, you are not expected to be an expert in identifying illegal immigration. If you are provided with a false document you will only face a civil penalty if it is ‘reasonably apparent’ that it is not genuine or does not belong to the holder.

If you fail to carry out a right to work check correctly, or at all, and you are found to be employing someone illegally, you may incur a civil penalty of up to £45,000 per breach for a first offence, or £60,000 per breach for repeat offences. The Home Office will determine the level of breach and the amount of any civil penalty for which you may be liable on a case-by-case basis.

A civil penalty will be calculated on the basis of a sliding scale. This takes into account any compliance record and mitigating factors. If you are able to demonstrate that you have effective practices in place, that you have reported your suspicion about any illegal worker(s) and have actively co-operated with the Home Office, the civil penalty may be reduced to the minimum level of a warning notice. However, this will only apply if you have not been found guilty of illegal immigration in the workplace within the previous 3 years.

If you are found liable for a fine, you will be issued a civil penalty notice. This will set out the total amount that you are required to pay and the date by which payment must be made. If you do not pay your penalty in full, or by instalments by the specified due dates, the Home Office may commence enforcement action against you.

 

Criminal sanctions against employers for illegal immigration

 

Following recent legislative changes, employers can now also face hefty fines and significant custodial sentences if they knew, or had reasonable cause to believe, that an employee did not have permission to work in the UK or undertake the work on offer.

Prior to the change in the law, employers would only be prosecuted if it could be proved they actually knew an illegal worker did not have permission to work. In practice, prosecutions were rare because it was very difficult to demonstrate that an employer was aware of any illegal immigration.

The new legislation widens the scope for prosecution and increases the maximum penalty. On conviction for employing an illegal worker you may now face up to 5 years’ imprisonment and/or an unlimited fine.

 

Additional consequences of illegal immigration in the workplace

 

In addition to any civil or criminal sanctions imposed for illegal immigration in the workplace, you or your business may also face the following consequences:

 

• A loss of sponsor status and revocation of any sponsorship licence to employ overseas workers.
• The potential disruption to your business by way of loss of staff, including any workers found to be working illegally, or other migrant workers no longer permitted to work for you following any loss of sponsor status.
• The imposition of an illegal working closure notice. Under new rules immigration officers have tough new powers to close down a business found to be employing illegal workers where there is a history of illegal immigration in the workforce.
• An adverse impact on your ability to obtain credit or act in the capacity of a company director, in the event that any enforcement action is taken against you for non-payment of a civil penalty.
• Serious reputational damage to your business, where the Home Office publishes the identity of employers guilty of illegal immigration in the workplace, including the level of fine.

 

 

Need assistance?

 

Failing to correctly carry out a right to work checks can have serious consequences for your business.

If you find yourself facing allegations of illegal immigration, you should seek legal advice immediately. Securing expert advice from an immigration law specialist can be key in challenging a civil penalty, in particular, whether you have a right to object or appeal against a civil penalty notice.

DavidsonMorris specialise in helping employers handle Home Office allegations of illegal immigration and advise on measures required to ensure compliance with your right to work duties. Contact us for help and advice with your immigration compliance.

 

Illegal immigration in the workplace FAQs

 

What is illegal immigration?

Illegal immigration refers to individuals living or working in the UK without valid legal authorisation, such as overstaying a visa or entering the country without proper documentation.

 

What are an employer’s responsibilities regarding illegal immigration?

Employers must ensure all employees have the right to work in the UK by conducting pre-employment right to work checks and maintaining accurate records of these checks.

 

What is a right to work check?

A right to work check involves verifying an individual’s immigration status using share codes, acceptable documents or the Home Office’s online checking service.

 

What are the penalties for hiring illegal workers?

Employers can face civil penalties of up to £45,000 per illegal worker for a first breach, rising to £60,000 for repeat offences. In more severe cases, such as knowingly hiring illegal workers, employers may face criminal charges, unlimited fines, and up to five years in prison.

 

How can employers prove compliance?

By keeping records of right to work checks, including copies of documents checked or online verification results. These records provide a statutory excuse against penalties.

 

Do employers need to recheck employees’ immigration status?

Yes, for employees with time-limited work permissions, employers must conduct follow-up checks before their current permission expires.

 

Can employers use the Home Office to check a candidate’s right to work?

If the candidate cannot provide acceptable documents, employers can use the Employer Checking Service to confirm their right to work.

 

What should employers do if an employee is found to be working illegally?

Employers should take immediate action to end the employment relationship, report the matter to the Home Office, and review internal processes to prevent future breaches.

 

What are the risks of not complying with immigration laws?

In addition to financial penalties and potential criminal charges, employers may suffer reputational damage, operational disruption, and loss of trust among employees and customers.

 

How can employers stay compliant?

Employers should implement clear recruitment procedures, provide regular training to HR staff, and stay updated on changes to UK immigration laws and right-to-work requirements.

 

Glossary

 

Term	Definition
Illegal Immigration	The act of residing or working in the UK without legal authorisation, such as overstaying a visa or entering without proper documentation.
Right-to-Work Check	A process employers must undertake to verify that a prospective employee is legally authorised to work in the UK.
Statutory Excuse	A legal defence that protects employers from civil penalties if they can prove compliant right-to-work checks were conducted.
Civil Penalty	A financial penalty of up to £20,000 per illegal worker imposed on employers who breach immigration laws.
Employer Checking Service	A Home Office service used to verify the right to work of individuals who cannot provide acceptable documents.
Biometric Residence Permit (BRP)	A physical document issued to individuals with permission to stay, work, or study in the UK, containing biometric and immigration information.
Home Office Online Right to Work Service	A digital tool that allows employers to check an individual’s right to work in the UK based on their immigration status.
Time-Limited Visa	A visa that grants temporary permission to work or stay in the UK, requiring employers to conduct follow-up checks upon expiry.
Knowingly Employing Illegal Workers	A serious offence where an employer is aware that an individual does not have the right to work in the UK but hires them regardless.
Reputational Damage	Harm caused to a business’s public image due to non-compliance with immigration laws or illegal employment practices.