How to Avoid Employing Illegal Immigrants

Employers across all sectors may find themselves falling foul of immigration compliance and facing allegations of employing illegal immigrants.

Under current immigration rules, employers operate under specific duties under the prevention of illegal working regime. Where employers are found to be in breach of their immigration compliance duties and are alleged to be employing illegal immigrants, they face serious Home Office penalties.

What do we mean by ‘illegal working?

The phrase ‘illegal immigrants’ is not confined to stowaways at UK ports. This term extends to anyone who has not been granted leave to enter or remain in the UK, irrespective of how or when they entered, and whether or not this was in a clandestine fashion. This includes those who have entered the UK legally, for example, on a short stay visa, but have subsequently overstayed.

Within the workplace, the phrase ‘illegal immigrants’ includes anyone subject to immigration control who is disqualified from working by reason of that status. This may be because their leave to enter or remain in the UK is invalid, whether by reason of curtailment, revocation, cancellation, passage of time or otherwise. It may also be because their leave has ceased to have effect or is subject to a condition preventing the person from doing work of that kind.

In any event, employers are required by law to check that all workers have the right to work in the UK before they start employment. If an individual is identified as having time0-limited permission to work, the emplloyer must conduct follow-up checks at appropriate stages to verify the worker’s continued right to work.

If the Home Office alleges an employer has breached their compliance duties, for example by failing to conduct checks in the correct manner, or failing to conduct checks at all, the employer risks civil penalties per breach. There is also a separate criminal offence for when an employer knows, or has reasonable cause to believe, they are employing someone illegally, which is punishable by custodial sentence and unlimited fine.

In addition to the financial and adminstrative ramifications of being found to have employed somemeone illegally, emplyers will alsowant to avoid any reputational damage from negative press or social media content resulting from allegations of illegal working.

Only where the employer can prove they complied with the rules can they rely on a statutory excuse to defend against a civil penalty for illegal working.

Given what is at stake, in this guide we set our best practice advice for employers to stay on top of their immigration compliance and avoid Home Office scrutiny.

How to avoid employing illegal immigrants

To avoid allgations of illegal working, employers must ensure that

Perform right to work checks

At the heart of right to work duties lies the responsibility of employers to verify the immigration status of their employees before they commence employment. This verification process ensures that only individuals with the legal right to work in the country are employed, preventing unauthorised employment and safeguarding the fairness of the labour market.
Home Office guidance sets out the requirements on employers and how compliant checks should be carried out. These are subject to frequent change, and it is advisable to seek professional guidance to ensure your processes and documentation comply with the latest rules:

Right to work: manual checks

When carrying out manual document checks, the following steps must be undertaken:

• OBTAIN – obtain an original document, or combination of documents, in accordance with the Home Office approved list.
• CHECK – check the validity of the documentation provided in the presence of the holder.
• COPY – make and securely retain a clear copy of the documentation electronically or in hardcopy. This should be in a format that cannot be manually altered, such as a jpeg/pdf document or photocopy.
• RECORD – make a contemporaneous record of the date on which you conducted your check. This can be by either making a dated declaration on the copy itself or by holding a separate record. You should also keep a record of when any repeat checks must be made.
• RETAIN – retain your copies and records for the duration of the individual’s employment, and for a further 2 years after they leave. These may need to be shown to the Home Office upon request to establish your statutory excuse.

 
When checking the validity of documentation presented to you as proof of an employee’s right to work, you must ensure that:

• the documentation is genuine, original and has not been tampered with.
• the person presenting the documentation is the rightful holder.
• the photographs and dates of birth are consistent across multiple documents and with the individual’s appearance.
• the expiry dates for permission to be in the UK have not passed and any work restrictions still permit the type of work, including any limit on the number of hours the individual is allowed to work.
• there is an explanation for any difference in names across multiple documents. You should seek further documentation to explain any differences, eg, an original marriage certificate or divorce decree. Any further documents must also be copied and retained.

You are not expected to be an expert in identifying fraudulent documentation. If you are provided with a false document you will only face penalty if it is reasonably apparent that the documentation checked was not genuine, did not rightfully belong to the holder or the work was not permitted.

In some cases you may also need to verify the employee’s right to work with the Home Office Employer Checking Service, eg, where an employee has an appeal or administrative review pending a decision. In these circumstances the Home Office will send you what’s known as a Positive Verification Notice to confirm that the individual in question has permission to work.

The responsibility for performing prescribed document checks rests with you as the employer. You cannot delegate this responsibility to a third party such as a recruitment agency. If a third party conducts the checks on your behalf, you will be unable to establish a statutory excuse in the event that you are found to be employing illegal immigrants.

Right to work: digital checks

For workers with a valid British or Irish passport, the employer can use digital Right to Work checks, using Identity Document Validation Technology (IDVT) via an Identity Service Provider (IDSP) to complete the digital identity verification element of the check.

Right to work: online checks

Online checks involve the worker requesting a share code from the Home Office, which they then provide to the employer to conduct an online check.

Online checks can be performed in respect of workers with certain types of status, for example, those with status under the EU Settlement Scheme or those whose immigration status is held solely in digital format. This includes anyone with an E-visa, or those with a Biometric Residence Permit (BRP), Biometric Residence Card (BRC) or a Frontier Worker Permit (FWP).

Under Home Office guidance issued in March 2023, eVisa holders with statutory immigration permission can now provide their employer with a share code to verify their right to work, provided they are either making an in-country eVisa application to remain in the UK using the UK Immigration: ID Check app; they do not have settled or pre settled status or have a frontier worker permit; their application was made after 26 January 2023 and before the expiry of their existing immigration permission; and they are currently awaiting a decision on their application, administrative review or appeal.

Right to work: Employer Checking Service

The Employer Checking Service is an online service operated by the Home Office for employers to use when it is not possible to carry out manual or digital right to work checks. This could be, for example, because the worker has an application pending with the Home Office and as such cannot provide the required documentation.

Maintaining records

Employers must keep accurate records of all right to work checks for at least two years after the employee leaves their employment. These records should include the date of the check, the employee’s details, and copies of the documents used for verification.

Importantly, record keeping must be compliant and consistent across the organisation and all of its branches, sites and offices.

Training and awareness

Employers should provide adequate training to their staff on the importance of right to work checks and the procedures involved. This ensures that all employees are well-versed in their obligations and understamd their role in ensuring compliance and avoiding penalties.

We offer a broad range of learning and training services to help employers, including right to work e-learning suitable for all personnel involved in recruiting, onboarding and managing staff and bespoke right to work training for larger organisations with complex structures and networks.

Immigration auditing

The most effective approach to immigration compliance is being proactive, and this includes conducting mock audits of records and processes to identify areas of risk and non-compliance to be rectified.

Reporting illegal workers

If an employer discovers that an employee is working illegally, they have a legal obligation to report the individual to the relevant authorities, such as the Home Office in the UK. This is crucial to prevent illegal working and protect the rights of legal workers.

Penalties for employing illegal immigrants

Under the Immigration, Asylum and Nationality Act 2006 your business may be liable for a civil penalty per illegal breach f you employ someone who does not have permission to be in the UK or undertake the work on offer.

Employers may also face criminal prosecution if they knew, or had reasonable cause to believe, that an employee did not hold a lawful immigration status. On conviction for employing illegal immigrants you may face up to 5 years’ imprisonment and/or an unlimited fine.

In addition to any civil or criminal sanctions imposed for employing illegal immigrants, you or your business may face a number of other consequences.

This includes a loss of sponsor status and revocation of your sponsorship licence to employ overseas workers. As a result there may be potential disruption to your business by way of loss of staff found to be illegal immigrants, as well as any other migrant workers no longer permitted to work for you following any loss of sponsor status.

Under new rules, immigration officers have tough new powers to temporarily close down any business found to be employing illegal immigrants where there is a history of the same. Accordingly, the imposition of an illegal working closure notice may again result in significant disruption to your business.

You may also suffer serious reputational damage, given that the Home Office publishes the identity of employers guilty of employing illegal immigrants in the workplace, as well as the level of any penalty imposed. 

By carrying out the prescribed document checks correctly, you may be able to rely on a ‘statutory excuse’ to challenge a Home Office penalty.

Need assistance?

Every employer, irrespective of size or sector, has to carry out prescribed document checks on all prospective and existing employees.

At DavidsonMorris, we specialise in helping employers meet their immigration compliance duties through for example the use of effective right to work processes, systems and personnel training.

We can help you implement procedures to help you rely on the statutory excuse in the event that you are facing allegations of employing illegal immigrants. We can advise on all aspects of how to avoid hiring illegal immigrants, across the recruitment, onboarding and ongoing personnel management lifecycle.  Contact us for help and advice with your immigration compliance.

Avoid illegal working FAQs

 
Last updated: 15 October 2023