Overview
All employers should follow certain procedures to check that their potential employees are eligible to work in the UK. This is because it is an offence, punishable by a fine, to employ a person who is not entitled to work or do that particular job in the UK. The fine is currently up to £10,000.
You can, however, avoid the fine if, before the employment begins, the employee produces a specified document which establishes his or her right to work in the UK. If you do this and the employee then turns out to be unlawfully working in the UK, you will have a defence to prosecution. However, you cannot avoid the fine if, at the point of recruitment, you know that the employee is not legally entitled to work for you.
What documents must you see?
Your potential employee must provide you with a document, or documents, from one of two lists. Documents provided from list A establish that the person has an ongoing entitlement to work in the UK. Documents from list B indicate that the person has restrictions on their entitlement to work (see below). If your employee has limited leave to remain in the UK, you must repeat the checks at least every 12 months
You must see the original of the particular document and be satisfied, taking into account any photographs or dates of birth on the document, that the employee is the holder of the document.
What should you do with the document?
Having seen one or more of the prescribed documents, you must either retain the document or make a copy or other record of it. With passports and travel documents, we suggest that you take a copy of the front cover and any other pages which contain personal details of the potential employee and any immigration stamps or endorsements.
Which candidates do you need to check?
It is important that you carry out the necessary document checks on all your new recruits if you wish to avoid prosecution.
Remember, too, you must ensure that you do not unlawfully racially discriminate against potential employees. As such, you should make these checks against all applicants in the same way and at the same stage of your recruitment process and not merely those who appear to be of non-British descent.
The Home Office has issued a Code of Practice which provides guidance for employers on the measures which they should take to avoid the commission of the offence of employing an illegal worker but at the same time avoid unlawful race discrimination. Click here to access the Code of Practice.
The government has issued guidance for employers on the prevention of illegal working, click here to access the guidance.
When should you carry out these checks?
It is your decision as to when you ask for one of the specified documents, whether it is at the first interview stage or only once you have chosen your preferred candidate. You should ideally have completed your checks before your candidate begins work, although many employers complete the checks on the first day of employment.
In either case, you should ensure that your offer letters include an appropriate condition relating to the employee’s right to work in the UK.
Example wording:
‘This offer of employment is conditional on your production of appropriate documentation demonstrating your right to work in the UK’.
On your first day, please bring with you your passport. If you do not hold a British passport, a passport from a country within the European Economic Area (EEA) or a non-EEA passport which entitles you to work in the UK, we will need to see additional documentation to verify your entitlement. You should contact me to find out which documents you will need to provide’.
Penalties for breach
Employers who negligently recruit illegal workers face a fine of up to £10,000 for each offence. In addition, those employers who are found to be knowingly employing illegal migrant workers will face an unlimited fine and/or a prison sentence of up to two years.
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List A
Single documents
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A passport showing that the holder is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.
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A passport or national identity card showing that the holder is a national of an EEA country or Switzerland.
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A residence permit, registration certificate or document certifying or indicating permanent residence issued by the HO or BIA to a national of an EEA country or Switzerland.
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A permanent residence card issued by the HO or BIA to the family member of a national of an EEA country or Switzerland.
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A Biometric Immigration Document issued by the BIA which indicates that the person is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK.
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A passport or other travel document 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.
Document combinations
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An official document issued by a previous employer or Government agency, which contains the permanent National Insurance number and name of the person and ONE of the documents listed in A-G below:
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- An Immigration Status Document issued by the HO or BIA to the holder with an endorsement indicating that the person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK; or
- A full birth certificate issued in the UK which includes the name(s) of at least one of the holder’s parents; or
- A full adoption certificate issued in the UK which includes the name(s) of at least one of the holder’s adoptive parents; or
- A birth certificate issued in the Channel Islands, the Isle of Man or Ireland; or
- An adoption certificate issued in the Channel Islands, the Isle of Man or Ireland; or
- A certificate of registration or naturalisation as a British citizen; or
- A letter issued by the HO or BIA to the holder which indicates that the person named in it is allowed to stay indefinitely in the UK.
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List B
- A passport or travel document endorsed to show that the holder is allowed to stay in the UK and is allowed to do the type of work in question, provided that it does not require the issue of a work permit.
- A Biometric Immigration Document issued by BIA which indicates that the person named in it can stay in the UK and is allowed to do the work in question.
- A work permit or other approval to take employment issued by the HO or BIA when produced in combination with either a passport or another travel document endorsed to show the holder is allowed to stay in the UK and is allowed to do the work in question, or a letter issued by the HO or BIA to the holder or the employer or prospective employer confirming the same.
- A certificate of application issued by the HO or BIA to or for a family member of a national of an EEA country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old when produced in combination with evidence of verification by the BIA Employer Checking Service.
- A residence card or document issued by the HO or BIA to a family member of a national of an EEA country or Switzerland.
- An Application Registration Card issued by the HO or BIA stating that the holder is permitted to take employment, when produced in combination with evidence of verification by the BIA Employer Checking Service.
- An Immigration Status Document issued by the HO or BIA to the holder with an endorsement indicating that the person named in it can stay in the UK, and is allowed to do the type of work in question, when produced in combination with an official document giving the person’s permanent NI Number and their name issued by a Government agency or a previous employer.
- A letter issued by the HO or BIA to the holder or the employer or prospective employer, which indicates that the person named in it can stay in the UK and is allowed to do the work in question when produced in combination with an official document giving the person’s permanent NI Number and their name issued by a Government agency or a previous employer.
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