Right to work checks crucial

Employers should follow new Home Office guidance and help prevent illegal working, writes employment lawyer David Hoey

BTO Solicitors’ David Hoey
BTO Solicitors’ David Hoey

UNDOUBTEDLY the ability to work illegally encourages illegal migration. It leads to the breaking of immigration laws, enabling migrants to remain in the UK unlawfully.

Illegal workers often put their lives in the hands of people smugglers, leaving them vulnerable to abuse and mistreatment. More often than not they receive remuneration below the national minimum wage and are exposed to illegal housing as well as exploitative working conditions.

Tax evasion is likely and unscrupulous employers take the opportunity to undercut legitimate businesses, which has a knock on negative impact on the employment of people who are lawfully in the UK.

All employers, irrespective of size or sector, have a responsibility to prevent illegal working from taking place.

Right to work checks should be made by employers on all potential employees before that person is employed to ensure they are legally allowed to perform the work. Employers must also carry out follow-up checks on individuals who have time-limited permission to work in the UK.

To avoid the risk of unlawfully discriminating, employers should treat all job applicants in the same way at each stage of the recruitment process and should avoid making assumptions about a person’s right to work in the UK or their immigration status on the basis of their race, nationality, accent, etc.

A right to work check involves three key steps:

  • obtaining the person’s original documents (acceptable for showing permission to work in the UK);
  • checking the validity of the documents in the presences of the holder;
  • making and retaining a clear copy and making a record of the date of the check.

Employers who carry out such document checks will have a statutory defence against immigration law violations.

This defence will not exist, however, where the check is performed by a third party, such as a recruitment agency, rather than the actual employer.

It should be remembered that illegal working is a criminal offence.

Employers who know or have reasonable cause to believe that they are employing an illegal worker will not enjoy a statutory defence (even if document checks have been carried out) and will be guilty of a criminal offence.

Employers who fail to adequately carry out a right to work check and are found to have employed an illegal worker face robust sanctions, which can include a civil penalty of up to £20,000 per illegal worker, a criminal conviction carrying a prison sentence of up to five years and an unlimited fine, closure of the business and an application for a court compliance order, and disqualification as a director.

The Home Office recently issued updated guidance to help employers prevent illegal working.

The new guidance (dated August 16, 2017) replaces the previous version (dated July 12, 2016) and applies to those employed after August 8, 2017.

The previous guidance remains relevant, however, for individuals who were employed between July 12, 2016 and August 8, 2017.

The guidance applies to employers who employ staff under a contract of employment, service or apprenticeship and includes information about:

  • Application Registration Cards (ARC) which are now issued as biometric documents containing an expiry date;
  • advice concerning those who claim to have a right to work as a non-European Economic Area (EEA) family member of an EEA national;
  • advice concerning voluntary work and being a volunteer;
  • illegal working measures introduced by the Immigration Act 2016, such as closure notices and compliance orders, immigration checks in the licensing regimes for taxis and private hire vehicles and alcohol and late night refreshment;
  • the employment of international students.

Right to work checks conducted after August 16, 2017 must comply with this new guidance.

Given the complexity of the law in this area, legal advice is recommended. Failing to prepare is preparing to fail!

•  David Hoey is a partner and accredited specialist in employment law at BTO Solicitors.