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Establishing the right to work in the UK

Employers have a duty to carry out certain checks before an individual commences employment and to keep a record of the checks that are carried out in order to comply with the Immigration, Asylum and Nationality Act 2006

An employer may be liable to a civil penalty or commit a criminal offence if it:

  • negligently employs someone without the right to undertake the work for which they are employed; or
  • knowingly employs an individual who does not have the right to undertake the work for which they are employed.

Although the Act applies only to individuals who are employed under a Contract of Service or Apprenticeship, in practice Immigration Officers may not take the time to distinguish employees from consultants and so the safest course of action is for employers to carry out the checks for every individual.

There is a civil penalty of up to £10,000 for each individual who does not have the right to work in the UK.  The criminal offence also carries the risk of imprisonment and/or a fine.  Details of the civil penalty will be published in a Public Register including the name and location of the employer.

So how can employers safeguard themselves against this legislation?

Employers should make any offer of employment subject to the candidate providing proof of permission to work in the UK.  An employer will be excused from paying a civil penalty if it can establish the statutory excuse by demonstrating that it undertook steps before the employment began to ensure that the employee could work in the UK.  The steps are set out in the UK Border Agency (UKBA) Comprehensive Guidance for Employers
on Preventing Illegal Working.

Mainly, the employer needs to request and keep copies of original documents to establish the employee’s eligibility to undertake the work on offer.  For individuals not subject to immigration control, they should usually provide an original passport.  Alternatively, if the individual is subject to immigration control, they need to produce original documentation such as a passport or a travel document endorsed to show that the holder is allowed to stay in the UK and do the type of work in question.  The full list of documents that employers can accept is included in the UKBA’s guidance.

Documents which will not establish a right to work in the UK include a temporary NI number or a permanent NI number alone, a driving licence or a short birth certificate issued in the UK which does not have details of at least one of the holder’s parents.

Employers need to check the validity of original documents to satisfy themselves that the individual is the person named in them.  This involves checking any photographs and dates of birth to ensure consistency, checking expiry dates and any UK Government endorsements, and making sure that the documents are genuine, have not been tampered with and belong to the holder. 

Employers are not expected to be experts in identifying false documents and will only be liable to pay a civil penalty if the falsity of the original document is “reasonably apparent”.

If an individual presents documents showing that they have limited leave to remain, the employer must re-check the worker’s documents every 12 months. 

In order to avoid claims for discrimination, employers should carry out appropriate checks on all prospective employees, not just those who appear to be of non-British descent, and this should be part of your recruitment process.