Brexit: An employer’s guide to preventing illegal working

Illegal working is governed principally by two pieces of legislation: the Immigration, Asylum and Nationality Act 2006 (‘the 2006 Act’) and the Immigration Act 2016 (‘the 2016 Act’).

In particular, you will need to consider whether you require a sponsor licence to employ the foreign nationals in question.

Under section 15 of the 2006 Act it is a civil offence for an employer to employ in the UK a person aged 16 or over who is subject to immigration control if:

• That person has not been granted leave to enter or remain in the UK; or
• That person’s leave to enter or remain in the UK is invalid, has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or other reason) or is subject to a condition preventing him or her from accepting the employment.

Thus, the person must have a current and valid permission to be in the UK which does not prevent him or her from taking the job in question, or he or she must come into a category where such employment is otherwise allowed.

Section 21 of the 2006 Act created a criminal offence which was made more onerous by section 35 of the 2016 Act. It is a criminal offence for an employer to employ in the UK a person:

1. knowing that he or she is disqualified from employment by reason of the employee’s immigration status; or
2. who is disqualified from employment by reason of immigration status and the employer has reasonable cause to believe that to be so.

The first offence above was already an offence under the 2006 Act; the 2016 Act added the second part.

To be disqualified in this context means:

• He or she has not been granted leave to enter or remain in the UK; or
• His or her leave to enter or remain in the UK is invalid, has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or other reason) or is subject to a condition preventing him or her from accepting the employment.

The maximum sentence on conviction for this offence is five years, with an unlimited fine applying. The Home Office may also seek to deport anyone who is working illegally.

The 2016 Act also:

• created a new offence of illegal working, thereby enabling the earnings of illegal workers to be seized under the Proceeds of Crime Act 2002.
• gave to a chief immigration officer the power to impose compliance sanctions and close businesses that continue to employ illegal workers.
• increased the powers for immigration officers to enter business premises to search for documents.
• there is also now a requirement that public sector workers in customer-facing roles speak fluent English.

These offences do not relate to engaging self-employed contractors. However, there is a risk that an immigration officer will not distinguish between the different statuses so it may be prudent to check the immigration status of everyone who works for your business.

These two offences replace the previous offence under section 8 of the Asylum and Immigration Act 1996 (‘the 1996 Act’).

Prior to 29 February 2008, an employer was liable, on summary conviction, to pay a criminal fine in respect of each offence with which they were charged and convicted.

With effect from 29 February 2008, the following two-tier approach came into force via the 2006 Act and it applies to those employees who started employment on or after 29 February 2008:

• A civil penalty for employers that employ illegal workers as a result of negligent recruitment and employment practices. Negligent hiring occurs where the employer hires an illegal worker, but does not actually know the worker is illegal at the time.
• A criminal offence (as detailed above) for employers that are found to have knowingly employed illegal workers. On conviction on indictment, this offence carries a maximum five year prison sentence and/or an unlimited fine.

The maximum civil penalty is £20,000 per illegal worker, having increased from £10,000 with effect from 16 May 2014.

Civil penalties are intended to be proportionate to the level of non-compliant behaviour and therefore the amount of the civil penalty will be calculated on a sliding scale. Whether the maximum penalty will be applied will depend on whether the employer reported the suspected illegal worker to the Home Office’s Employers’ Helpline and his active co-operation with the Home Office’s investigation. These two mitigating factors can each lead to a reduction of £5,000 in the penalty. Where the employer can show both of these mitigating factors and has not been found to be employing illegal workers within the previous three years, the penalty may be reduced to nil, and a warning notice issued instead, if he can also show he has effective document checking practices in place.

There is also a fast payment option i.e. a 30% reduction in the civil penalty for payment in full within 21 days of the penalty notice, but note that this option is not available to employers who have been found to be employing illegal workers within the previous three years.

Section 15(3) of the 2006 Act provides a statutory excuse for an employer against liability for payment of the civil penalty where he can show that, before the employment began, he carried out various prescribed document checks in order to verify the prospective employee’s status.

However, the excuse is not available if the employer knew that the person was not entitled to work in the UK when he or she was taken on. This is a criminal offence under section 21 of the 2006 Act and, as stated above, conviction under this offence will carry the potential of an unlimited fine and/or prison sentence of up to two years.

The prescribed document checks should be carried out in respect of all prospective employees and should take place before the person begins working.

These arrangements for establishing the statutory excuse only apply to those employees who started employment on or after 29 February 2008. An employer will still be liable for criminal prosecution under the 1996 Act where illegal workers were employed between 27 January 1997 and 28 February 2008 in circumstances where the employer did not establish the statutory defence at the point of recruitment. Equally, if the employer established the statutory defence under section 8 of the 1996 Act for employees taken on before 29 February 2008, this will be retained for the duration of that person’s employment.

Documents are on one of two lists. Documents provided from List A establish that the person has an ongoing and permanent entitlement to work in the UK. If an individual is not subject to immigration control, or has no restrictions on their stay in the UK, they should be able to produce a document or specified combination of documents from List A. Original documents on this list will establish the excuse for the duration of the employee’s employment.

Where an individual has restrictions on their entitlement to work in the UK i.e. they have limited leave to enter or remain in the UK, they will need to produce a document or specified combination of documents from List B. List B is divided into ‘Part 1’ and ‘Part 2’ documents. Part 1 documents mean that the employer’s time-limited statutory excuse lasts until the expiry date of the employee’s permission to be in the UK and do the work in question, as evidenced in the document produced for the right to work check. Part 2 documents, which all involve obtaining a Positive Verification Notice from the Home Office Employer Checking Service, mean that the employer’s time-limited statutory excuse lasts for six months.

The employer must in all cases see the original of any document, take and retain a photocopy and be satisfied (having regard to any photographs or dates of birth on the document) that it relates to the individual in question.

References to documentation issued by the Home Office include documentation issued by UK Visas and Immigration (which is part of the Home Office) and also documentation that was issued by the former UK Border Agency.

List A – Acceptable documents which provide a continuous statutory excuse

Any one of the original documents included below in List A (or the relevant combination) will provide an employer with a continuous statutory excuse for the whole duration of the employee’s employment if he checks and copies them and follows certain steps:

1. A passport showing that the holder, or a person named in the passport as the child of 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 a national identity card showing that the holder, or a person named in the passport as the child of the holder, is a national of a European Economic Area country or Switzerland.
3. A registration certificate or document certifying permanent residence issued by the Home Office to a national of a European Economic Area country or Switzerland.
4. A permanent residence card issued by the Home Office to the family member of a national of a European Economic Area country or Switzerland (from 6 April 2015, permanent residence cards are now issued in biometric format).
5. A current biometric immigration document (Biometric Residence Permit) issued by the Home Office to the holder which indicates that the person named in it is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK.
6. 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.
7. A current immigration status document issued by the Home Office to the holder with an endorsement indicating that the person named in it is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, when produced in combination 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. Either a short form or a full birth certificate issued in the UK which includes the name(s) of at least one of the holder’s parents, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.
9. Either a short form or a full adoption certificate issued in the UK which includes the name(s) of at least one of the holder’s adoptive parents, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government Agency or a previous employer.
10. A birth certificate issued in the Channel Islands, the Isle of Man or Ireland, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.
11. An adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.
12. A certificate of registration or naturalisation as a British Citizen, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.

Once the employer has checked one of (or the relevant combination of) these documents from the prospective employee, there is no need to ask for any further documents contained in List B.

In addition, as the statutory excuse lasts for the whole duration of the employee’s employment, there is no need to repeat the right to work check.

List B – Acceptable documents which provide a time-limited statutory excuse

List B is divided into Parts 1 and 2. Any one of the original documents included below in List B (or the relevant combination) will provide an employer with a time-limited statutory excuse if he checks and copies them and follows certain steps:

List B, Part 1

1. A current passport endorsed to show that the holder is allowed to stay in the UK and is allowed to do the type of work in question.
2. A current biometric immigration document (Biometric Residence Permit) issued by the Home Office to the holder which indicates that the person named in it is allowed to stay in the UK and is allowed to do the work in question.
3. A current residence card (including an accession residence card or a derivative residence card) issued by the Home Office to a non-European Economic Area national who is a family member of a national of a European Economic Area country or Switzerland or who has a derivative right of residence (from 6 April 2015, residence cards and derivative residence cards are now issued in biometric format).
4. A current immigration status document containing a photograph issued by the Home Office to the holder with an endorsement indicating that the person named in it is allowed to 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 National Insurance Number and their name issued by a Government agency or a previous employer.

If the prospective employee is able to produce a current document in List B, Part 1, the employer should make a follow-up check using this document. The 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, or combination of documents, they produced for the right to work check.

If, however, at the point that permission expires, the employer is reasonably satisfied that the employee has an outstanding application or appeal or administrative review pending to vary or extend their leave in the UK, the time-limited statutory excuse will continue from the expiry date of the employee’s permission for a further period of up to 28 days. This is to enable the employer to verify whether the employee has permission to continue working for him. During this 28 day period the employer must contact the Home Office Employer Checking Service and receive a Positive Verification Notice confirming that the employee continues to have the right to undertake the work in question.

In the event that the employer receives a Positive Verification Notice, the statutory excuse will last for a further six months from the date specified in the Notice. The employer will then need to make a further check upon its expiry. However, in the event that the employer receives a Negative Verification Notice, the statutory excuse will be terminated.

List B, Part 2

1. A certificate of application issued by the Home Office, under regulation 17(3) or 18A(2) of the Immigration (European Economic Area) Regulations 2006, to a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment which is less than six months old.
2. An application registration card issued by the Home Office stating that the holder is permitted to take the employment in question.

If the prospective employee holds one of the documents in List B, Part 2, or is unable to present an acceptable document because they have an outstanding application with the Home Office or an appeal or administrative review pending in respect of their leave, the employer must contact the Home Office Employer Checking Service and receive a Positive Verification Notice which indicates that the person named in it is allowed to stay in the UK and is allowed to do the work in question. The time-limited statutory excuse will last for six months from the date specified in the Positive Verification Notice. The employer will then need to make a further follow-up check upon its expiry.

If follow-up checks are not carried out, the employer may be subject to a civil penalty if the employee is found to be working illegally. The follow-up checks only enable an employer to retain his original excuse. This is because the excuse cannot be established after employment has started.

Biometric Residence Permits (BRPs) are immigration documents issued to migrants that have been granted permission to enter or remain in the UK for more than six months. In the case of migrants overseas who are granted permission to enter the UK for more than six months, they are now issued with a vignette (sticker) in their passport which will be valid for 30 days to enable them to travel to the UK. Following their arrival in the UK, they have 10 days to collect their BRP from the Post Office branch detailed in their decision letter. For most migrants granted permission to be in the UK, the BRP is the document that proves they have permission to work in the UK.

BRPs are credit-card sized immigration documents that contain a highly secure embedded chip. They contain the holder’s unique biometric identifiers (fingerprints, digital photo) within the chip, display a photo and biographical information on the face of the document and details of entitlements, such as access to work. BRPs therefore provide employers with a secure and simple means to conduct a right to work check.

Migrants permitted to work in the UK are encouraged to collect their BRP before they start work. However, if they need to start work before collecting their BRP, they will be able to evidence their right to work by producing the short validity vignette in their passport which they used to travel to the UK. Employers will then need to conduct a full right to work check on the basis of this vignette, which must still be valid at the time of check. However, as this expires 30 days from issue, employers will have to repeat the check using the BRP (before the expiry of the vignette) for the statutory excuse to continue.

The current Home Office guidance note on checking BRPs suggests a number of further additional checks employers should carry out to determine whether or not an employee’s BRP is genuine. The additional checks are intended to be easily added to those already required to be undertaken by employers and does not replace them. On presentation of a BRP, if the employer carries out the additional checks it is likely to demonstrate the employer’s commitment to the prevention of illegal working and provide additional protection for their business.

The guidance note suggests that when an employee or potential employee presents a BRP, in addition to general checks the employer should also:

• Examine the permit – to check if it is clean and in good condition.
• Check the permit number – which is displayed on the front of the permit in the top right hand corner. The number should begin with two letters followed by seven numbers. The number should not be raised.
• Check the holder’s image – this should always be in grey-scale. Employers should check the photograph to ensure that it is consistent the appearance of the individual.
• Check the tactile feature (on the back of the BRP) – the back of the BRP should have a raised design, which incorporates the four national flowers of the UK. This can be seen by shining a light across the permit and/or by running a finger over the design.
• Feel the permit - it should be thicker than a photo card driving licence, it will make a distinctive sound when flicked and should not be folded or bent.
• Check the biographical details – check that the name, date of birth and photographs are consistent with the individual present; and
• Check the immigration conditions – which are shown on the front and back of the permit. Common conditions confirm the number of hours an individual is permitted to work or that they must report to the police.

To be compliant with the rules, employers must ensure they take the following steps:

Step one
Ask all prospective employees to provide:

• One of the original documents, or the relevant combination, given in List A; OR
• One of the original documents, or the relevant combination, given in List B.

Step two
Carry out the following reasonable steps to check the validity of the documents presented to them by the prospective employee and retain a record of the date on which the right to work check was made. This date may be written on the document copy as follows: ‘the date on which this right to work check was made: [insert date]’. In carrying out the check you should:

• Check any photographs, where available, to ensure that the employer is satisfied they are of the prospective employee.
• Check the dates of birth listed so that the employer is satisfied these are consistent with the appearance of the prospective employee.
• Check that the expiry dates of any limited leave to enter or remain in the UK have not been passed.
• Check any UK Government stamps or endorsements to see if the prospective employee is able to do the type of work that the employer is offering (for students who have limited permission to work during term times, the employer must also obtain and retain details of their academic term and vacation dates covering the duration of their period of study in the UK for which they will be employed).
• Be satisfied that the documents are genuine, have not been tampered with and belong to the holder.

The employer must check the documents in the presence of the holder (either in person or via a live video link).

If the prospective employee gives the employer two documents that have different names, the employer should ask for a further document to explain the reason for this. The further document could be a marriage certificate, divorce decree, deed poll, adoption certificate or statutory declaration. Supporting documents should also be copied and the copy retained.

Step three
The employer should take and retain a clear photocopy (or scan in a format which cannot be altered, such as a jpeg or pdf document) of the relevant document(s).

In the case of a passport, employers should copy the following:

• Any pages that give the prospective employee’s personal details, their nationality, photograph, date of birth, signature, the date of expiry, leave expiry date and biometric details.
• Any pages containing information indicating the holder has an entitlement to enter or remain in the UK and undertake the work in question.

All other documents should be copied in their entirety, including both sides of a Biometric Residence Permit.

Employers should ensure they keep a record of every document copied. Copies of documentation should be retained securely and in accordance with data protection legislation for the duration of the employee’s employment and for two years after employment has ceased. That way, the Home Office will be able to examine the employer’s right to the statutory excuse if they detect an employee is working illegally.

It is up to the prospective employee to demonstrate that he or she is permitted to do the work being offered. If the prospective employee is not permitted to work, the employer is entitled to refuse employment to that person.

Employers who acquire staff as a result of a TUPE transfer are provided with a grace period of 60 days to undertake the appropriate documents checks following the date of transfer.

Employers may be presented with documents that require verification by the Home Office Employer Checking Service to establish the statutory excuse. The service is delivered via a process where the employer is required to complete an online interactive form to enable the Home Office to verify any entitlement to work. For all checks through the Employer Checking Service, it is the employer’s responsibility to inform the prospective employee that they may undertake a check on them with the Home Office. To establish or retain the statutory excuse, the records and documents relating to the check should be retained for examination and submitted to officials upon request.

Employers are able to solely rely on the online Employer Checking Service to demonstrate compliance with illegal working legislation.

In complying with their statutory obligations, employers may run the risk of unlawful race discrimination. Therefore, employers need to take steps to ensure they do not act in a discriminatory fashion when complying with their obligations to employ only workers who are entitled to work in the UK. It is important to remember that the majority of people from minority ethnic groups who live in the UK are British citizens.

The safest way for employers to ensure that they do not discriminate in their recruitment practices and procedures is to treat all job applicants in exactly the same way and make right to work document checks of all prospective employees, even if they claim to or appear to be British.

Employers who operate discriminatory recruitment processes risk a claim being made for unlawful race discrimination under the Equality Act 2010. In this case, the compensation that can be awarded is unlimited.

The UK left the EU on 31 January 2020. Most nationals from the EEA countries and Switzerland can still enter and work in the UK without any restrictions following the UK’s departure from the EU until the end of the transition period on 31 December 2020. The same is also the case for their immediate family members. EEA and Swiss nationals who arrived in the UK before the end of the transition period (31 December 2020) have until 30 June 2021 to apply for either settled or pre-settled status, which will give them the right to work in the UK. EEA and Swiss nationals entering the UK from 1 January 2021 will not be able to apply for settled or pre-settled status. They will require a visa to be able to work in the UK under the new immigration system which applies from 1 January 2021. EEA nationals and Swiss nationals will usually be able to produce either a national passport or a national identity card and can continue to rely on these until 30 June 2021 to prove their right to work in the UK. EEA nationals, Swiss nationals and their family members will continue to be able to use the documents listed in this section as proof of their right to live and work in the UK until 30 June 2021 due to the 6-month grace period that remains in place from the end of the transition period following the UK’s departure from the EU.

For EEA nationals and Swiss nationals that were recruited prior to 30 June 2021, there is no requirement to carry out any further right to work checks and employers may continue to rely on the existing right to work checks as evidence of their right to work in the UK for the duration of their employment.

Until 30 June 2021 these individuals can prove their right to work in the following ways:

• EU, EEA or Swiss citizens can use their passport or national identity card
• non-EU, EEA or Swiss citizen family members can use an immigration status document listed in List A, above
• EU, EEA and Swiss citizens and their family members can use the online right to work checking service

If the individual uses the online checking service this will generate a share code. The employer must then use the employers’ online service to check their right to work using this share code here.

Home Office guidance states that, as employers have a duty not to discriminate against EU, EEA or Swiss citizens, employers cannot require those individuals to provide details of their immigration status under the EU Settlement Scheme until after 30 June 2021. From 1 July 2021, in respect of any new recruitment from that date (this does not apply to existing EEA and Swiss employees employed before that date) employers will be under an obligation to check that all EEA and Swiss new recruits, as with other recruits from overseas, have a valid UK immigration status under the new immigration regime: a valid passport or national identity card will no longer be sufficient evidence to provide a statutory excuse. The EEA includes EU countries and also Iceland, Liechtenstein and Norway. The following countries are part of the EEA and fall within these rules:

• Austria
• Belgium
• Bulgaria
• Cyprus
• Czech Republic
• Denmark
• Estonia
• Finland
• France
• Germany
• Greece
• Hungary
• Iceland
• Ireland
• Italy
• Latvia
• Liechtenstein
• Lithuania
• Luxembourg
• Malta
• Netherlands
• Norway
• Poland
• Portugal
• Romania
• Slovakia
• Slovenia
• Spain
• Sweden

In addition, nationals from Switzerland also have the same free movement and employment rights as EEA nationals and so fall within the above rules. This is because although Switzerland is not an EU or EEA member it is part of the single market.

Bulgaria and Romania
Bulgaria and Romania joined the EU on 1 January 2007 but nationals of these two countries still needed to obtain authorisation to work in the UK until 31 December 2013 in the form of an Accession worker card. These restrictions were lifted with effect from 1 January 2014 and Bulgarian and Romanian nationals were able from that date to legally work in the UK on the same basis as nationals from any other EEA country.

Croatia
Croatia joined the EU on 1 July 2013. The transitional provisions restricting the free movement rights of Croatian workers ended on 30 June 2018, meaning that Croatian nationals are no longer required to obtain an accession worker authorisation document from the Home Office and employers are no longer required to check for these documents.

Irish Nationals
Under the Common Travel Area arrangements Irish Nationals do not need permission to enter or remain in the UK, including a visa, any form of residence permit or employment permit.

This status will continue once free movement and the transition period following the UK’s departure from the EU ends on 31 December 2020.

A new immigration system will apply to individuals arriving in the UK for the first time from 1 January 2021. EEA citizens moving to the UK for the first time from this date to work will need to obtain a visa in advance:

https://www.gov.uk/guidance/new-immigration-system-what-you-need-to-know

https://www.gov.uk/guidance/recruiting-people-from-outside-the-uk-from-1-january-2021

From 2021 there will not be a general route for employers to recruit from outside the UK for jobs offering a salary below £20,480 or jobs at a skill level below RQF3 (equivalent to an ‘A’ level). EEA citizens applying for a skilled worker visa will need to show they have a job offer from an approved employer sponsor to be able to apply for a skilled work visa. Employers who are planning to sponsor workers from outside the UK from 2021 will need to apply for a sponsorship licence in advance: https://www.gov.uk/government/publications/uk-points-based-immigration-system-employer-information