It is unlawful to employ someone who does not have the right to reside and the appropriate right to work in the UK or who is working in breach of their conditions of stay. There is an obligation on employers to ensure that those working for them are doing so legally.

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In order for an employer to comply with its obligations under the Immigration Act 2016, it must:

  • Carry out “right to work” checks on all prospective employees before employment starts
  • Conduct follow-up checks on employees who have time-limited permission to live and work in the UK, or require a document to evidence their right
  • Keep records of all the checks carried out
  • Not employ anyone it knows or has reasonable cause to believe is an illegal worker

If an employer is a sponsor for an employee under the points-based system there are additional obligations to comply with.

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In order to carry out a “right to work” check an employer must:

  • Obtain the employee’s original documents as prescribed in the Home Office guidance such as a passport or drivers’ licence
  • Check, in the presence of the prospective employee, that the documents relate to the individual and that they’re original, unaltered and valid
  • Copy the documents and record the date of the check. The copy should be retained by the employer

There are civil and criminal sanctions if an employer breaches their obligations. An employer would be liable for the civil penalty if they employee someone without the right to work. The maximum penalty is £20,000 for each individual working for the employer without the legal right to work. The employer would also commit a criminal offence if they knew or had “reasonable cause to believe” that the employee did not have the appropriate immigration status. An employer could be subject to imprisonment for a maximum period of five years if convicted on indictment.

As the sanctions on an employer for breaching its obligations under the Immigration Act 2016 are high, it is imperative that you take advice to ensure your business follows correct protocols. Employers need to carry out right to work checks on all prospective employees before their employment starts. Our solicitors can assist you to make sure your business has the necessary policies and procedures in place.

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