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The maximum fine for employing an illegal worker is increasing from £20,000 to a whopping £60,000. And if you’re found to knowingly employ an illegal worker, you can also face criminal charges.
The Government can audit you at any time and if they suspect you have employed an illegal worker, whether knowingly or not, it is your responsibility to provide proof that you completed the necessary checks.
If you cannot provide this evidence, you’ll be fined and could face more serious consequences.
Completing right to work checks is a simple process when employing someone and it is essential that you’re doing this and keeping a record of it correctly.
To ensure you are legally compliant follow these steps:
1. Make sure you stay up-to-date
The Home Office doesn’t announce when changes are made and it’s your responsibility to make sure your processes reflect the latest guidance. You can do this by keeping an eye on the GOV.UK website. https://www.gov.uk/employ-someone
2. Make sure you accept valid proof of right to work
Biometric residence cards can no longer be accepted, so make sure you know what proof is now valid and ensure you receive and check this before employing someone.
check the applicant’s right to work online, if they’ve given you their share code
You can also check an applicant’s right to work by using an identity service provider that offers Identity Document Validation Technology (IDVT).
3. Conducting a manual document-based right to work check
There are three steps to conducting a manual document-based right to work check. You need to complete all three steps before employment commences to ensure you have conducted a check in the prescribed manner as set out by GOV.UK
Step 1: Obtain
You must obtain original documents from either List A or B of the acceptable documents as detailed below.
List A – acceptable documents to establish a continuous statutory excuse
1. A passport (current or expired) showing the holder is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.
2. A passport or passport card (in either case, whether current or expired) showing that the holder is an Irish citizen.
3. A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted unlimited leave to enter or remain under Appendix EU(J) to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.
4. A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK.
5. A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
6. A birth or adoption certificate issued in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
7. A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
8. A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
List B
Group 1 – documents where a time-limited statutory excuse lasts until the expiry date of permission to enter or permission to stay
1. A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question
2. A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted limited leave to enter or remain under Appendix EU(J) to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.
3. A current Immigration Status Document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
List B
Group 2 – documents where a time-limited statutory excuse lasts for six months
1. A document issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules (known as the EU Settlement Scheme) on or before 30 June 2021 together with a Positive Verification Notice from the Home Office Employer Checking Service.
2. A Certificate of Application (non-digital) issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules (known as the EU Settlement Scheme), on or after 1 July 2021, together with a Positive Verification Notice from the Home Office Employer Checking Service.
3. A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man showing that the holder has made an application for leave to enter or remain under Appendix EU(J) to the Jersey Immigration Rules or Appendix EU to the Immigration Rules (Bailiwick of Guernsey) Rules 2008, or Appendix EU to the Isle of Man Immigration
4. An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.
5. A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question.
Step 2: Check
You must check that the documents are genuine and that the person presenting them is the prospective or existing employee, the rightful holder and allowed to do the type of work you are offering.
You must check that:
• photographs and dates of birth are consistent across documents and with the person’s appearance in order to detect impersonation;
• expiry dates for permission to be in the UK have not passed;
• any work restrictions to determine if they are allowed to do the type of work on offer (for students who have limited permission to work during term-times, you must also obtain, copy and retain details of their academic term and vacation times covering the duration of their period of study in the UK for which they will be employed);
• the documents are genuine, have not been tampered with and belong to the holder; and
• the reasons for any difference in names across documents can be explained by providing evidence (for example, original marriage certificate, divorce decree absolute, deed poll). These supporting documents must also be photocopied and a copy retained.
Step 3: Copy
You must make a clear copy of each document in a format which cannot manually be altered and retain the copy securely: electronically or in hardcopy.
You must also retain a secure record of the date on which you made the check. If your organisation cannot prove to the Home Office that checks were made before employment commenced, you will be fined.
You must copy and retain copies of:
1. Passports: any page with the document expiry date, the holder’s nationality, date of birth, signature, immigration permission, expiry date, biometric details, photograph and any page containing information indicating the holder has an entitlement to enter or remain in the UK (visa or entry stamp) and undertake the work in question (the front cover no longer has to be copied).
2. All other documents: the document in full, including both sides of an Immigration Status Document and an Application Registration Card. All copies of documents taken should be kept securely for the duration of the worker’s employment and for two years afterwards. The copy must then be securely destroyed.
Conducting the above steps will create a statutory excuse in the event that an employee is found to be working illegally.
You can also use the Employer Checking Service where an individual has an outstanding application, administrative review or appeal and their digital profile is not yet enabled to evidence this, or if their immigration status requires verification by the Home Office.
With something so consequential as right to work checks, you cannot afford to make any mistakes. So, if you’re unsure, please speak to an expert HR consultant today to get your processes sorted out and keep your small business running smoothly.