Right to Work

What you must do - Law

Knowingly Employing an Illegal Worker

Under section 21 of The Immigration, Asylum and Nationality Act 2006, an employer may commit a criminal offence if he or she knowingly employs an illegal migrant.

If at any stage an employer knows that a person who is working for them is not permitted to do the job in question, for example where the individual’s leave to remain has expired, then the employer will lose the right to the statutory excuse and could face prosecution.

The UK Border Agency will also seek to prosecute and/or remove from the UK any person found to be working illegally in the UK.

Establishing the Statutory Excuse

Employers are liable for a civil penalty of up to £10,000 per illegal worker they employ. Employers will have a statutory excuse from this liability if they have checked and retained copies of certain original documents before the employment begins. The excuse cannot be established after employment has started.

Employers are not legally required to conduct these checks, but they will establish a statutory excuse from paying the civil penalty. Where an employer can demonstrate that it has complied with these requirements, it will have established the statutory excuse even if it transpires that the employee was working illegally as long as the employer did not knowingly employ an illegal migrant worker.

The steps required to establish the statutory excuse are:

Step 1
The prospective employee must provide one of the original documents alone, or two of the original documents in the specified combinations given in List A (if they have no restrictions on their stay in the UK) or List B (if their leave to enter or remain in the UK is time-limited). These lists are contained within the “Comprehensive Guidance for Employers on Preventing Illegal Working”

Where the individuals leave to enter or remain in the UK is time-limited, they should produce document(s) from List B before they are employed and carry out follow-up checks of the same kind at least once every 12 months. These repeat checks are required to retain the statutory excuse.

Step 2
Employers are required to check the validity of the document and be satisfied that the individual is the person named in the documents presented and is entitled to do the work in question.

Step 3
Employers must make a copy of the relevant page or pages of the document(s), in a format which cannot be subsequently altered.

Avoiding Racial Discrimination

The best way to make sure that you do not discriminate is to treat all job applicants in the same way at each stage of your recruitment process.

You should ask all prospective employees to present their documents before they begin working for you. You should not make presumptions about a person’s right to work in the UK on the basis of their background, appearance or accent.

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