Ensuring workers are eligible to work
- 1 Overview
- 2 Checking a prospective worker's entitlement to work in the UK
- 3 Copying and retaining workers' records
- 4 Compliance checks
- 5 Penalties for immigration offences and employing an illegal worker
All employers in the UK have a responsibility to prevent illegal migrant working. You must check the entitlement of everyone you plan to employ to work in the UK.
If you fail to do this, you may be liable to pay a fine (known as a 'civil penalty'). If you knowingly employ an illegal migrant worker, you may face criminal prosecution, which could result in an unlimited fine and/or a maximum two-year prison sentence.
This guide will tell you how to comply with the laws on checking the entitlement to work in the UK.
Ensure that each prospective worker is eligible to work in the UK before their employment commences. You will establish a 'statutory excuse' against being liable to pay a fine (known as a 'civil penalty') for employing an illegal worker.
You should make the necessary checks even if you think a potential worker has the right to work in the UK.
Checking the right to work in the UK
The UK Border Agency (UKBA) publishes two lists - List A and List B. These documents can demonstrate someone's right to work in the UK.
You have a statutory excuse against liability for a civil penalty, if your prospective worker gives you an original version of a document from List A. Alternatively they need to give you a specified combination of two documents from List B.
You should ask them to provide the documents before they start work. You could ask:
- shortlisted applicants to bring the appropriate document(s) when they come for an interview
- the successful applicant to provide the appropriate document(s) before you make them an unconditional job offer
Once the worker has presented you with the necessary document(s), you must:
- satisfy yourself that the document(s) are valid and genuine, and have not been tampered with
- check that any photographs and birth dates on the documents match the applicant's appearance
- check information in the job application against the documents to ensure the details match up
- check that the document(s) allow the worker to do the work on offer
Note that you are not expected to be an expert on forged documents. All you need to do is conduct simple - but careful - visual checks without the need for training or technological aids. You should be satisfied that the document(s) presented are genuine, and relate to the person presenting them.
If you are not sure whether or not a document is valid, call the UKBA Sponsorship and Employers' Helpline on Tel 0300 123 4699.
If the worker provides a document(s) from List B, you must repeat the checks at least once every 12 months to retain the excuse. This should be done until they provide a specified document or documents from List A, or they leave your employment.
In order to avoid racial discrimination, you should check all applicants' right to work in the UK. This is regardless of their race, ethnic or national origin, colour or (apparent) nationality.
You must keep a record of the documents that prove prospective workers have the right to work in the UK. Photocopy or scan and save them electronically on a non-rewritable disk - eg CD-R or DVD-R.
With passports and travel documents, you must copy:
- the front cover
- the date of expiry
- any photographs and signature
- all of the pages giving the prospective worker's personal details, including nationality
- pages containing a UK government stamp or endorsement which allows the prospective worker to do the work you are offering
You should copy other documents in their entirety.
Keep copies of the documents until two years after the worker's employment ends. This will help you establish a statutory excuse if the UK Border Agency (UKBA) detects anyone working illegally for you.
If you lose any records, the UKBA may look at your normal recruitment procedures when considering if you have established a statutory excuse. For example, if you have a consistent practice of copying documents for each worker.
You should not retain a person's original documents, except for the purpose of copying them. The only exceptions are:
- when an individual gives you a P45 as part of a combination of documents. You should retain part 2 of the document for three years to comply with HM Revenue & Customs rules
- when you employ someone for 24 hours or less and it is not practicable to obtain a copy of the documents. You can retain the document(s) while they work for you but you must have facilities for keeping them safe
You must not keep a potential worker's original documents for more than a day. If you deliberately keep, or retain without consent, a person's passport or other original documents, you may be guilty of an offence.
Police and immigration officers have certain powers to enter business premises where they believe an immigration offence is being committed.
For the more serious immigration offences, an employer may be fined and/or prosecuted.
Compliance checks of sponsor businesses
The UK Border Agency (UKBA) may carry out checks before making a decision on your sponsorship application. You may also be visited by one of their visiting officers as part of this process.
The UKBA may also conduct checks and/or visits after you have been granted a sponsor licence.
Such checks/visits are carried out to make sure that the information you have given on the sponsorship application is accurate. It ensures that you are fulfilling all of the duties required of you as a licensed sponsor.
Compliance checks for immigration offences
The police and immigration officers have the power to arrest and remove an individual who:
- has entered the UK unlawfully
- no longer has the right to be in the UK
The police and immigration officers also have the power to:
- enter premises, including business premises, to arrest such individuals
- search, and in some cases seize, personnel records
For committing an immigration offence, employers may face any or a combination of the sanctions below. They may:
- receive a written warning or a fine (known as a 'civil penalty') for employing an illegal worker
- be prosecuted and fined for employing an unregistered A8 national prior to 1 April 2011 or an unauthorised A2 national with no permission to work in the UK
- be prosecuted for facilitation/trafficking
- be prosecuted for the procuring/use of fraudulent identity documents
- be prosecuted for knowingly employing an illegal migrant worker
- be disbarred as a company director/officer as a result of prosecution
If the employer is a sponsor under the points-based system, they may also:
- be downgraded on the points-based system sponsorship register
- have their sponsor licence cancelled and be removed from the points-based system sponsorship register
Penalties for employing an illegal worker
If you are found to be employing illegal migrant workers and have not established a statutory excuse, you may have to pay a civil penalty. This can be up to £10,000 per illegal migrant worker.
However, if you know that you are employing a person who is not permitted to work, you will not be entitled to the excuse.
You could also be prosecuted for the offence of knowingly employing an illegal migrant worker. If you are convicted of this offence, you could face an unlimited fine and/or a prison sentence of up to two years.
Reporting immigration offences
If you suspect that a job applicant is in the UK illegally or has no right to work in the UK, you should report them. Send an email to UKBApublicenquiries@ukba.gsi.gov.uk.
Read our guide on Pre-employment checks for employers.