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15 August 2016

Right to Work Checks – Is Your Business Compliant?

The Home Office has issued new guidance to employers on right to work checks in light of the new illegal working offences under the Immigration Act 2016 coming into force on 12 July 2016.

For decades, governments have sought to stamp out illegal working in the UK, and it’s clear to see why. It is bad for business, as the low wages which illegal workers receive often give employers ways to cut costs and gain an unfair advantage over competitors. It is bad for society, as they take away jobs from other tax-paying employees. And finally, it is bad for the migrant worker themselves, who often end up being exploited by the employer who exercise total control over their income and therefore over their lives.

The Immigration Act 2016 has advanced the government’s battle against illegal working by ‘imposing tougher penalties and sanctions on rogue employers who exploit illegal migrants for their own gain’. So how has it changed the law and what must employers do to make sure they avoid any of those penalties.

Firstly, with effect from 12 July 2016, an employer commits an offence if he employs an illegal worker and knows or has reasonable cause to believe that the person has no right to do the work in question. This is an extension of the criminal offence of knowingly employing an illegal migrant. The standard has become far more objective, with prosecutors no longer needing to demonstrate specific knowledge. So the employer can no longer evade prosecution simply because the investigating agency cannot prove that the employer knew that the employee had no permission to work. If employers have perhaps deliberately ignored information, or circumstances that would have caused the employer to know that the employee lacked permission to work, they will still be liable for the offence.

It is clear from this addition to the old law that the Home Office are increasing the burden on employers to follow correct procedure when employing staff. Not only has the prison sentence for employing illegal workers risen from 2 to 5 years but the employers business can now be forcibly closed for up to 48 hours pending the payment of any civil penalties the employer is yet to pay. Civil penalties, which already existed under the Immigration, Asylum and Nationality Act (IANA) 2006, can now be as high as £20,000 – eye-wateringly high if you are the owner of a small business.

In practice, employers can avoid the civil penalty if they undertake the specified right to work checks (a relatively simple 3-step process of obtaining, checking and copying certain documents). However, the checks must be carried out before the employment begins. Conducting the checks on the day that they start work will not satisfy the IANA 2006 and will therefore leave you liable to be fined.

What is clear is that by following the 3-step procedure employers should have enough information on the immigration status of the applicant to make a judgement on whether or not they have the right to work in the UK. Where there is any reasonable doubt surrounding their status then employers should seek further legal advice.

A detailed guide for employers which explains the 3 step process has also been provided to help ensure companies stay compliant with the law and can be found here:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/536953/An_Employer_s_guide_to_right_to_work_checks_-_July_16.pdf

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