“You are breaking the law if you employ a person who does not have the right to work in the UK. You can be fined up to £10,000 for each illegal worker, or face criminal prosecution”.
As an employer, under sections 15-25 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act), which came into force in Feb 2008, you have a duty to carry out document checks to confirm that an individual has a right to work in the UK.
- Document Checks
You need to carry these out to establish:
- If the person has a right to work in the UK
- If the person has a right to engage in the type of work you are offering.
You should not accept a National Insurance Number on its own in any format as this does not provide acceptable evidence of right to work in the UK.
There is a “3 step process” that should form your recruitment and employment practices. It is important you follow these checks because if it does so happen you employ an illegal worker(s) and are found to, you have adequate defence against receiving a civil penalty.
- What are adequate documents?
Documents demonstrating a right to work are split into two lists, list A and list B.
If the person has any of the list A documents, it shows they are not subject to immigration control and they do not have a limitation on the amount of time they are allowed to stay in the UK. This consequently means they have ongoing right to work in the UK without restriction.
Is the opposite of list A.
If the person presents documents categorised as those coming under list B, that individual has been granted leave to enter or remain in the UK for a restricted period of time, and so consequently has restrictions on their right to work.
In this instance you have a time limit on how long the check of their documents lasts, which is currently 12 months. You must carry out repeat document checks at least once every 12 months.
If when you recheck an employee’s documents they then provide you with documents in list A, no further checks are necessary and you have adequately carried out checks for the remainder of their employment with you.
Along with one of the documents listed in list A or list B, there must also be a National Insurance number. A National Insurance number is only an adequate defence when it is accompanied by a document in either list.
A full outline of documents falling under either list A or list B can be found in section 3 pages 15 to 32 of the Home Office’s publication ‘Full guide for employers on preventing illegal working in the UK‘ found here.
- The 3 step process
|STEP 1||You must ask for and be given an acceptable document (s).- One would suffice
– Must be originals
|STEP 2||Must take reasonable steps to affirm the document is genuine confirming the holder is the person in the document. Check it allows them to do the work in question.- Photographs match the appearance
– Dates of birth are consistent
– Expiry dates of any limits to enter the UK have not passed
– Check UK immigration endorsements
– A further document to explain the reason for a different name if two documents are presented. A marriage certificate, divorce ect.
|STEP 3||You must retain a copy of the document in a format that cannot later be altered.- A photocopy or scan in a non-rewritable format
– Passport or other travel document: the document’s front cover and any page containing the holder’s personal details (nationality, photograph, DOB, signature, expiry date, biometric details). Also, any page showing UK immigration endorsements showing the person has the right to be in the UK and to carry out the work.
– Copy other documents in full e.g both sides of a Biometric Residence Permit.
– Adequately keep a record of every document copied and it is advised you write the date, or log the date you took the copy of the document somewhere safe.
– Keep the documents for the duration of their employment, and two years after they have ceased employment with you.
Providing you follow this procedure you will have a good statutory defence if your employee(s) is found to be illegally residing and working in the UK.
Avoiding racial discrimination
- Treat all job applicants in the same way at each stage of your recruitment process.
- Ask all persons interested in working for you to present their documents before they start working for you
- Refer to the code of practice issued by the Home Office to ensure you carry out doc checks without discriminating against individuals
EEA Nationals – what you need to know
Persons from countries in the European Economic Area and Switzerland are referred to as EEA nationals. They can enter the UK without any restrictions. Remember you must:
- Request an official document showing their nationality such as a passport or identity card.
A registration certificate would also suffice. An EEA national can exercise a treaty right as a worker, job-seeker, self-employed person, self-sufficient person or as a student. If their family member is exercising a treaty right they too can reside here.
A Croatian national is only able to work in the UK if they hold a valid accession worker authorisation document. This is according to the Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013. They need a permission to work document before starting any form of employment.
What if they are not EEA nationals?
To summarise they are not entitled to work in the UK if they do have permission under the tiers of the Points Based Immigration System. For the Tier system and further information see the Imperial College London’s advice on permission to work in the UK.
Things to remember:
- Carry out the “3 step process” on acceptable documents before the individual starts working for you.
- Take into account their nationality
- National Insurance Numbers on their own do not suffice
- I would stipulate the document must not have expired
- Take into account time limits that persons may have – you must carry out repeat document checks at least once every 12 months
- Take into account restrictions on types of work and hours
- If you have the slightest suspicion they are not who they say they are do not hire them without substantial evidence provided on their part
For more information see the Home Office’s publication ‘Full guide for employers on preventing illegal working in the UK’ October 2013 for an Employers Right to Work Checklist, or ‘An employer’s guide to right to work checks’ December 2014 .