The law requires employers to make checks and keep records of rights to work for all persons employed from January 1997 onwards. This factsheet gives an overview as to the why, how, when, and what to check, as an employer, to gain a statutory excuse to avoid prosecution and or fines if an illegal worker is found working for you.
Why? The Law: Immigration, Asylum and Nationality Act 2006:
You are breaking the law if you employ a person who does not have the right to work in the UK.
Under Section 15: An employer not completing the necessary checks can be charged a civil penalty of up to £10,000 for each illegal worker they have hired.
Under Section 21: employer knowingly employing an illegal worker can face criminal prosecution leading to the possibility of up to 2 years imprisonment and, or an unlimited fine!
Duties from the 2006 Act apply to anyone who starts working for you on or after 29 February 2008. However, the previous 1996 Act means that you should have already acquired appropriate Right to Work documents for all employees that started working for you between 27 January 1997 and 28 February 2008.
NB: Right to work documentation only needs to be kept until 2 years after a person stops working for you.
How? Check and record right to work documents to provide a statutory excuse:
With a statutory excuse, if an employee is subsequently found to be an illegal worker, the employer may avoid charges and, or prosecution. The following checks and records are required for your statutory excuse for all existing employees who started work with you since February 2008 and every person you look to employ:
- Request and be given original documents fulfilling one of a-g from list A/B in the documents table(bottom)
- Check each document is genuine, belongs to the person you are checking, and shows that they are allowed to do the type of work you are offering. If any of these checks prove to be false then the person\’s right to work is not proven and you are not entitled to hire them.
- Any photographs and, or date of birth listed should be consistent with the person\’s appearance
- Any date of birth listed should be consistent across documents
- Any shown limited leave to enter or remain in the UK expiry dates should not have passed
- Any shown UK government endorsements (Biometric Residence Permits, stamps, stickers, visas) should show that the person is allowed to do the type, and or amount of hours work being offered
- The name should be consistent across documents, or if it is not, a further explanatory document should also be used (eg. marriage certificate, divorce decree absolute, deed poll, or statutory declaration)
- Copy, and store securely, the relevant pages of the documents in a format which cannot later be altered (eg. photocopy or scan)- it is suggested that you write on the copy the date it is made:
- For a passport/travel document – copy the front cover and all pages containing either the holder\’s personal details or UK government endorsements showing their permission to be in the UK and to carry out the work you are offering.
- For all other documents – copy them in full (including both sides of a Biometric Residence Permit)
- Keep a record of every document you have copied.
When are the checks done?
You must check every person you plan to employ before employing them. Ensure this is done for all employees to avoid discrimination. If the documentation provided satisfies one of a-g from list A in the documents table (bottom), then this is the only check that is required as the statutory excuse will last as long as their employment with you.
If the documentation provided satisfies one of a-e from list B in the documents table (bottom), then their right to work checks must be repeated at least every 12 months, or sooner, if a person\’s limited right to work is due to expire before the 12 months deadline.
What documentation is needed?
The table on page 3 summarises the documents that can be checked and recorded to provide your statutory excuse. You need to have checked correctly either a singular document or combination of documents that satisfies one of a-g list A or a-e list B that clearly indicates about the person one of the options shown adjacent to the document in the right column (overlapping rows from the left to right column show where more than one option is available for a given document).
Also important to note, the following list of documents (1-9), taken straight from the April 2012 Summary Guide For Employers On Preventing Illegal Working In The UK, are NOT acceptable as right to work documentation for your statutory excuse:
- 1. A Home Office Standard Acknowledgement Letter or Immigration Service Letter (IS96W) which states that an asylum seeker can work in the UK. If you are presented with these documents then you should advise the applicant to call us on 0151 237 6375 for information about how they can apply for an Application Registration Card;
- 2. A National Insurance number on its own in any format;
- 3. A driving licence issued by the Driver and Vehicle Licensing Agency;
- 4. A bill issued by a financial institution or a utility company;
- 5. A passport describing the holder as a British Dependent Territories Citizen which states that the holder has a connection with Gibraltar;
- 6. A birth certificate which does not have details of at least one of the holder\’s parents
- 7. A licence provided by the Security Industry Authority;
- 8. A document check by the Criminal Records Bureau;
- 9. A card or certificate issued by the Inland Revenue under the Construction Industry Scheme.
For the full UK Borders Agency summary guide for employers on preventing illegal working in the UK, and write to work checklist: summary-guidence.pdf
Factsheet: HR – Right to Work Checks – Avoiding Employment of Illegal Workers
This information is provided for reference only – no liability accepted. All registered trademarks recognised. E&OE.