Prevention of Illegal Working

‘Right to Work’ is an area of immigration compliance that applies to all UK employers, regardless of size, sector or whether or not you employ migrant employees.

‘Prevention of illegal working’ refers to the duty on an employer to ensure that anyone they employ is not disqualified from working in the UK, or carrying out the work in question, by reason of their immigration status.

This means that employers have a responsibility to prevent illegal working by conducting a right to work check on all prospective employees before employing them, even if they claim to be UK nationals, as well as carrying out checks on existing employees who’s right to work in the UK could be time limited.

The rules apply to employees of all nationalities and race, which means your Right to Work checks must be conducted on all employees to avoid discrimination claims.

Where an employer is found to have employed someone who, by reason of their immigration status, is prohibited from legally working in the UK or undertaking the work in question, they may be liable to pay a civil penalty.

Where a right to work check has been carried out, as long as this is done in the correct way, an employer ought to be able to establish a statutory excuse against any civil liability, even if someone is found to be working illegally for them.

The responsibility for carrying out a right to work check rests with you as the employer, even where the check has been delegated to members of your staff. If the prescribed check is not carried out correctly, you will remain liable for the civil penalty if any employee is found to be working illegally.

Right to Work checks on EU workers

Employers commonly have questions about the rights and status of EU workers since the end of EU freedom of movement and the introduction of a new points-based immigration system.

EU nationals who were already in the UK by 31 December 2020 are able to remain in the UK with lawful status, provided they registered under the EU Settlement Scheme for settled or pre-settled status by 30 June 2021.

EU nationals coming to the UK to work from 1 January 2021 should have applied to the Home Office for a visa, such as a Skilled Worker visa, for which the employer will require a sponsor licence.

Employers can continue to accept the EEA passport or ID card alone as proof of the Right to Work in the UK until 30 June 2021. From 1 July 2021, employers must then also check for confirmation of the EEA or Swiss national’s immigration status, which may be under the settlement scheme or a valid visa.

There are three basic steps to conducting a manual Right to Work check:

• Obtain original versions of one or more acceptable documents from the prospective or existing employee.
• Check the document’s validity in the presence of the holder.
• Make and retain a clear copy and record the date the check was made.

The documents you may accept from someone to demonstrate their Right to Work are set out in two prescribed lists: ‘List A and List B’ of which are freely available to view and download from Right to work checklist – GOV.UK (www.gov.uk)

If you are found to be in breach of the prevention of illegal working rules, you may be facing a civil penalty of up to £20,000 per illegal worker. There is also a range of additional sanctions that may flow from this:

• Disqualification as a director
• Seizure of earnings made as a result of illegal working
• Closure of your business and a compliance order issued by the court
• A review and possible revocation of your sponsor licence, affecting your ability to sponsor migrants who come to the UK in the future
• A review and possible revocation of a licence in the alcohol and late night refreshment sector and the private hire vehicle and taxi sector

If you know that you are employing someone who is not allowed to carry out the work in question, you will not have a statutory excuse against liability for a civil penalty, regardless of whether you have conducted a right to work check.

Where you know or have reasonable cause to believe an individual does not have the right to work and employ them anyway, you also risk criminal prosecution punishable by imprisonment for up to 5 years and an unlimited fine.

121 HR Solutions can assist with any questions you may have on this subject, simply contact us today and we will be happy to discuss.