Right to Work Checks and Civil Penalties

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All UK employers have a responsibility to avoid employing illegal workers. By carrying out appropriate document checks, employers may protect themselves from civil penalties and prosecution. If you are found to have employed a worker illegally, you may be liable for a civil penalty. Each illegal worker will attract a penalty

What is the Right to Work Check?

Employers are under a duty to check that every employee has a right to work. You must conduct this check before your employees commence working for you. If you want to employ a worker from outside the European Economic Area, they must obtain, or already have, permission to work

How should you conduct the Right to Work Check?

You must obtain documents from either of the Home Office’s lists, List A or List B. List A is for people who are allowed to work in the UK indefinitely. List B is for people who are only entitled to work for a limited period of time. Obtaining the correct documents and keeping copies in the prescribed format will give you a ‘statutory excuse’ against a civil penalty if you later find out that the worker does not have the right to work. If you do not obtain the exact documents listed, you will not have a statutory excuse for that worker.

You must check the documents in the presence of the holder, and before they start working for you.

You must check several properties of the documents. It is good practice to record that you have checked each point.

You must make a clear copy of each document in a format which cannot be altered and retain this copy securely for not less than two years after the employment has come to an end.

If the person has time-limited permission to be in the UK and perform the work, you must carry out additional checks when that permission expires.

It is unlawful to discriminate in employment practices because of race. To avoid discrimination, you should check all potential employees’ right to work documents.

If a potential employee cannot prove their right to work then you should not employ them. If the employee already works for you, has time-limited permission to work and cannot prove their right to work in a follow up check, you should cease employing them.

What else do you need to know about the Right to Work Check?

You can avoid incurring a Civil Penalty by conducting appropriate right to work checks. If you have carried out suitable document checks, you will have a ‘statutory excuse’ and will not be liable for a civil penalty.

Document checks will not protect you against prosecution if you knew the worker did not have permission to work, or if you could reasonably have known.

If you later apply for a Sponsor Licence with a view to sponsoring foreign workers, any history of employing workers illegally will affect your application.

What do you do if you receive a Civil Penalty?

The Home Office will send you a notice telling you that your case is being referred to officials who will consider your liability for a civil penalty. If you do not think that you are liable for the civil penalty, you can object to the Home Office or appeal to a court if:

The maximum penalty you can be made to pay is £20,000 per illegal worker (£5,000 if they are Croatian). The amount you will have to pay will depend on whether you have been found to employ illegal workers before, whether you have reported the illegal worker to the Home Office, whether you have co-operated with the Home Office and whether you generally comply with your employer duties to prevent illegal working.

Whether you have to pay a civil penalty, and how much, will also depend on when the employee commenced working with you.

There are options to pay a reduced penalty if you pay quickly, or pay by instalments. If you do not pay the penalty, object or appeal by the due dates, the Home Office will commence court action against you. If the Home Office is successful, you will have a County Court Judgment against you. This may impact upon your credit rating and affect your ability to act as a company director.

It is also a criminal offence to knowingly employ an illegal worker, or employ an illegal worker where you had reasonable cause to believe that they did not have the right to work in the UK. You may face up to five years’ imprisonment and/or an unlimited fine.

What else do you need to know about the Civil Penalty?

You can avoid incurring a civil penalty by conducting appropriate right to work checks. If you have carried out suitable document checks, you will have a ‘statutory excuse’ and will not be liable for a civil penalty.

Document checks will not protect you against prosecution if you knew the worker did not have permission to work, or if you could reasonably have known.

The Home Office publishes lists of all civil penalties imposed on companies. These are freely accessible to the public using the Home Office website. The Home Office often also issues press releases to local and national media, naming companies that have employed workers illegally.
If you later apply for a Sponsor Licence with a view to sponsoring foreign workers, any history of employing workers illegally will affect your application.

Making a Right to Work Check or Civil Penalty Challenge with OneLaw Chambers

At OneLaw Chambers, our immigration solicitors and barristers regularly assist with Right to Work Checks and Civil Penalty Challenges in order for applicants to ensure they maintain compliance with the rules. We have assisted many businesses and corporations to prepare and submit successful Right to Work Checks and Civil Penalty Challenges and we have represented clients from all over the world.

Whether you require expert immigration advice on the requirements of the Immigration Rules, an independent immigration assessment of your prospects of qualifying for a Right to Work Check and Civil Penalty Challenge or professional immigration representation with preparing for your Right to Work Check and Civil Penalty Challenge, our immigration solicitors and barristers can help you.

We are committed to ensuring that our immigration solicitors and barristers prepare every immigration visa application with utmost quality and skill so that successful outcome is achieved every time. Our immigration solicitors and barristers operate in a friendly and cooperative manner to provide our clients with the best client care and service during the entire immigration application process.

To discuss your Right to Work Check and Civil Penalty Challenge with one our immigration solicitors and barristers, please contact our Immigration lawyers on 0207 489 2044 / 0208 616 1819 or complete our enquiry form with your details.