Employers must ensure that employees have the right to work in the UK. Section 15 to 25 of the Immigration, Asylum and Nationality Act 2006 compels employers to prevent illegal working.
Illegal working often results in abuse and exploitation, the mistreatment of illegal or overstayer migrant workers, tax evasion, and poor housing conditions. It can also undercut legitimate businesses and have an adverse impact on both people who are lawfully employed in the UK, and the UK economy.
Who is an illegal worker?
Examples include:
- Someone with no visa
- Someone with an expired visa
- Someone with a student visa, who is working more hours than they are allowed to
- Someone who made an application to the Home Office to extend their visa, but their leave already expired
- Someone with a visit visa (unless it allows them to do paid permitted engagements)
- Someone who is allowed to work, but is working in an industry or field that they are not allowed to
However, it is important to note that someone might not necessarily be an illegal worker – it depends on many factors, including the terms and conditions of their specific visa.
Penalties for employers
Under section 15 to 25 of the Immigration, Asylum and Nationality Act 2006, employees have a duty to prevent illegal working, and may receive civil or criminal penalties if they are found to have breached this duty.
On the 7th of August 2023, the Secretary of State announced that they are set to make amendments to the Act. On the 23rd of January 2024, The Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2024 was created, which increased the penalties.
Civil penalties
For the first offence, the civil penalty used to be a maximum of £15,000. However, it is now a maximum of £45,000.
For any subsequent offences, the civil penalty used to be a maximum of £20,000. However, it is now a maximum of £60,000.
These steep fines demonstrate the serious consequences of employing illegal workers. Furthermore, the employer’s business details could be published by Immigration Enforcement as a deterrent to other businesses.
Criminal penalties
Under section 21 of the Immigration, Asylum and Nationality Act 2006, employers can also be liable for criminal penalties, and can be sentenced to jail for up to 5 years. This can be instead of (or in addition to) civil penalties.
Avoiding penalties
Employers need to check an employee’s right to work and make sure their documents are valid before hiring them. If an employer can evidence this, they may be able to establish a statutory excuse against civil liability.
However, there is no statutory excuse against criminal liability, if the employer knows that employment was not permitted.
To check an employee’s right to work, employers can use the government’s right to work service or an identity service provider that uses Identity Document Validation Technology (IDVT).
You should also check their original documents, such as their passport, immigration status document, birth or adoption certificate, etc. The full list can be found at Employer’s guide to right to work checks: 21 June 2024 (accessible version) – GOV.UK (www.gov.uk). Always check for the most up to date version of the employer guidance.
When checking their documents, you must ensure that:
- The documents are genuine, original and unchanged
- They belong to the person who has given them to you
- The photos look the same person across all the documents
- The dates of birth are the same across all the documents
- If there are different names, there is evidence to explain why, for example a marriage or divorce certificate
More information is available here https://www.gov.uk/check-job-applicant-right-to-work.
You must ask the Home Office directly to confirm a person’s right to work if they:
- Cannot show their documents or online immigration status
- Have a Certificate of Application that says you need to ask the Home Office for right to work
- Have an ARC (Application Registration Card)
The link is here: Use the Employer Checking Service – GOV.UK (www.gov.uk).
If they have the right to work, the Home Office will send you a ‘positive verification notice’. You must keep this carefully.
Even if you have already done a right to work check, you should still conduct regular checks as required to ensure that your employee still has the right to work in the UK.
How we can help
Our experienced lawyers can help employers by:
- Challenging/appealing any civil penalty notices
- Defending any criminal prosecution
We will assist by:
- Obtaining the complete facts of a case
- Reviewing the relevant documents
- Advising on the best solutions
- Preparing formal responses to civil penalty notices
- Preparing any criminal defence
- Submitting any application(s) to the relevant authority
- Communicating with the relevant authority until a decision is made
- Advising about rights and entitlements following a decision
- Providing follow up support and services