Preventing illegal working letter

It’s important to check all new recruits are eligible to work in the UK, or you could find yourself committing an offence. Use our preventing illegal working letter to enable you to carry out the necessary checks on prospective employees’ eligibility to work in the UK - you must do this before they start work for you.

Offence and penalties

Under Section 15 of the Immigration, Asylum and Nationality Act 2006, it’s a civil offence for you to employ in the UK a person who is subject to immigration control if they have not been granted leave to enter or remain in the UK, or their leave to enter or remain in the UK is invalid, has ceased to have effect or is subject to a condition preventing them from accepting the employment. Therefore, all workers must have a current permission to be in the UK which doesn’t prevent them from accepting the particular job, or they must come into a category where such employment is otherwise allowed. Under Section 21 of the Act, it’s a criminal offence for you to employ in the UK a person who is disqualified from employment by reason of their immigration status and either you know or you have reasonable cause to believe that they are subject to immigration control and that they have not been granted leave to enter or remain in the UK, or that their leave to enter or remain in the UK is invalid, has ceased to have effect or is subject to a condition preventing them from accepting the employment. For the civil offence, you can now be fined up to a maximum of £60,000 for each illegal worker found in your employment as a result of negligent recruitment practices (£45,000 per illegal worker for a first breach within the last three years). The amount of the civil penalty is calculated on a sliding scale and depends on factors such as whether you reported the suspected illegal worker to the Home Office’s Employers’ Helpline and your active co-operation with the Home Office’s investigation. For the criminal offence, conviction on indictment carries a maximum five-year prison sentence and/or an unlimited fine.

Statutory excuse

The legislation provides an excuse for you against liability for payment of the civil penalty (but not against liability for the criminal offence) where you can show that, before the worker’s employment began, you carried out either an online right to work check (using the Home Office online right to work checking service), a right to work check using Identity Document Validation Technology (IDVT) (via the services of an Identity Service Provider (IDSP)) or a manual right to work document check (and in some cases your right to work check must be an online one). This is where our Preventing Illegal Working Letter comes in. The relevant checks should be carried out in respect of all prospective employees and should take place before they begin work. Our letter envisages the individual either bringing their physical documents along to interview, producing their share code and date of birth for the online right to work check or consenting to an IDVT check (assuming you’ve put a commercial arrangement in place with an IDSP). Physical documents are on one of two lists. Documents provided from List A establish that the person has a permanent right to work in the UK. Original documents on this list will establish the excuse for the duration of the employee’s employment. Where an individual only has a temporary right to work in the UK, they will need to produce a document or specified combination from List B. With List B documents, you only have a time-limited statutory excuse and you will be required to carry out follow-up right to work checks. How long your time-limited statutory excuse is valid for will depend on whether the documents produced were in Part 1 or Part 2 of List B. If the employee produces a current document in Part 1, you should make a follow-up check using this document. Your time-limited statutory excuse will continue for as long as the employee has permission to be in the UK and do the work in question, as evidenced by the document they produced for the right to work check. If the worker holds one of the documents in Part 2, or is unable to present an acceptable document because they have an outstanding application, appeal or administrative review with the Home Office in respect of their leave (except for some eVisa holders who have applied in time for a further eVisa for permission to stay in the UK, where you can instead use the Home Office online right to work checking service), you must contact the Home Office Employer Checking Service and obtain a Positive Verification Notice. Your time-limited statutory excuse will then last for six months from the date specified in that Notice and you will need to make a further check upon its expiry. You must in all cases see the original of any document, take and retain a photocopy in a format which cannot be altered, keep a record of the date on which the check was made and be satisfied that the document is genuine and has not been tampered with, that the person presenting it is the employee and that the photograph and date of birth are consistent across documents and with the person’s appearance. You must also conduct the checks in the presence of the employee (they must be present in person or via a live video link). In the case of an online right to work check, the response will confirm the period for which the employee is permitted to carry out the work in question and hence whether you only have a time-limited statutory excuse. IDVT right to work checks can only be carried out on British and Irish citizens who hold a valid passport (or valid Irish passport card).