Under section 15 of the Immigration, Asylum and Nationality Act 2006, all UK employers have a duty to carry out the right to work checks to establish if a relevant worker can undertake the work in question. Home Office will take action against those who employ illegal workers and do not undertake the correct checks. You can protect yourself by conducting the correct document checks, and establishing a ‘statutory excuse’, in accordance with the publication Right to work checks: employer guidance on GOV.UK.
Right to work checks by immigration sponsor licence holders
When you are a immigration sponsor licence holder and the worker is not your direct employee (for example, if they’re self-employed), you are not required to establish a statutory excuse but you must still ensure the relevant checks have been carried out (and retain suitable evidence) to comply with your record-keeping duties, as set out in Appendix D to the sponsor guidance.
You must do this check before the relevant employment starts. If you employ or engage someone who has no restrictions on their right to be in the UK and work (for example, if they have indefinite leave to remain), you only need to make this check once. If the worker has restrictions on their right to be in the UK and to do the work in question (for example, if they have limited permission to enter or stay under a Worker or Temporary Worker route), you need to conduct follow-up checks.
You need to pay attention to detail when conducting the right to work checks. Particularly in more complex scenarios, such as when a migrant worker is sponsored by another employer and you wish to employ the worker part-time at your business. This is called ‘supplementary employment‘. Similarly, when you employ students you need to check if they can work at all and if they can, how many hours per week and their studies term time.
Penalties for employing workers illegally
If you employ workers illegally, you may face the following penalties:
• Home Office may issue you with a civil penalty of up to £60,000 for each illegal worker
• if Home Office issue you with a civil penalty, they are likely to revoke your licence and you will not be eligible for a new licence until at least 12 months have passed since you have paid the civil penalty in full (this period could be up to 5 years if you are issued with more than one civil penalty)
• if Home Office need to take action to enforce payment of a civil penalty, this could adversely affect your ability to obtain credit
• you may be prosecuted for knowingly employing an illegal worker, for which you can go to prison for up to 2 years and/or receive an unlimited fine
• you may be prosecuted for having in your possession or under your control an identity document (or a copy of it) that is false or improperly obtained and you may go to prison for up to 5 years and/or receive an unlimited fine
• you may be disqualified from acting as a company director
• you may be prosecuted for facilitation or trafficking and, if convicted, you may go to prison for up to 14 years and/or receive an unlimited fine
• if you are subject to UK immigration control, and liable for employing illegal workers, this will be recorded on Home Office systems and will be used in the consideration of future immigration applications.