Compliance and Penalties
All UK employers have a responsibility to avoid employing illegal workers. By carrying out appropriate document checks, employers can protect themselves from civil penalties and prosecution.
The right to work
Employers are under a duty to check that every employee has a right to work. You must conduct this check before your employees commence working for you. If you want to employ a worker from outside the European Economic Area, they must obtain, or already have, permission to work.
The following categories of people have the right to work in the UK:
- British Citizens (this is the only form of British nationality where the holder automatically has the right to work. British Nationals, British Nationals (Overseas), British Overseas Territories Citizens, British Overseas Citizens, British Subjects and British Protected Persons do not normally have the automatic right to work in the UK);
- EEA citizens and citizens of Switzerland;
- Those with the right of abode in the UK;
- Those with no time limit on their stay in the UK; and
- Those with a visa or permission to remain in the UK which permits work (this may be subject to conditions, such as a maximum number of hours to be worked in a week, which must be complied with)
Students may have permission to work, but if they do, this will be limited during term time. If someone you want to employ does not already have the right to work, you will need to sponsor them for a visa.
Consequences of failing to check employees’ right to work
It is illegal to employ someone aged 16 or over who is subject to immigration control and who is not allowed to undertake the work in question.
Civil penalties: if you are found to have employed a worker illegally, you may be fined up to £20,000 per illegal worker. You can avoid incurring a civil penalty by conducting appropriate right to work checks. If you have carried out suitable document checks, you will have a ‘statutory excuse’ and will not be liable for a civil penalty. Failure to pay a civil penalty can result in a County Court Judgment.
Criminal prosecution: if you have knowingly employed an illegal worker, you may face up to two years’ imprisonment and/or an unlimited fine. Document checks will not protect you against prosecution if you knew the worker did not have permission to work.
Negative publicity: The Home Office publishes lists of all civil penalties imposed on companies. These are freely accessible by the public using the Home Office website. The Home Office often also issues press releases to local and national media, naming companies who have employed workers illegally. If you later apply for a Tier 2 or 5 Sponsor Licence with a view to sponsoring foreign workers, or a Gang master Licence, any history of employing workers illegally will affect your application. The penalties for illegally employing Croatian nationals are different. The maximum civil penalty is £5,000.
For advice and assistance with conducting right to work checks, preventing illegal working or challenging a civil penalty, please contact our immigration solicitors in London.