Right to Work: Pay attention or pay the price

Reducing migration – both legal and illegal - remains a key policy for the government. Unannounced visits designed to stop illegal working increased by 50% in 2023 and 2024 will bring significant increases in civil penalties for employers found to be facilitating illegal working. With the maximum fine tripling to £60,000 per worker, it is crucial for employers to familiarise themselves with changes to right to work guidance to ensure ongoing compliance.

Why conduct a right to work check?

All employers need to check that a person is legally allowed to live and work in the UK before they are employed. This applies to all prospective applicants, not just non-UK nationals. To establish a defence against a civil penalty, known as a statutory excuse, in the event an employee is found to be working illegally, employers must carry out one of the following right to work checks:

  • A manual right to work check, checking physical documents.
  • A right to work check using digital identity document validation technology (IDVT) via an approved digital identity service provider (IDSP).
  • A Home Office online right to work check using a share code provided by the employee.

If a prospective employee cannot show their documents or online immigration status, the Home Office Employer Checking Service can be used to check for a valid right to work.

The way each check needs to be carried out varies, depending on the format of the check and the employee’s individual circumstances. The Home Office maintains detailed right to work guidance for employers, setting out the necessary steps to obtain a statutory excuse.

What are the consequences of getting it wrong?

  • Employers without a statutory excuse are potentially liable for civil penalties of up to £20,000 per illegal worker.
  • Knowingly employing an illegal worker is also a criminal offence, carrying the risk of up to five years in prison and/or an unlimited fine in the most serious cases.
  • Disqualification of directors or total business closure.
  • Employers are named and shamed online by the Home Office, causing PR and reputational risk on top of financial impact.

Sponsor Licence holders

Many businesses are increasingly relying on migrant workers to plug skills gaps. Sponsor licence holders are subject to ongoing record keeping and reporting duties, with the Home Office viewing sponsorship as a privilege not a right. As well as the penalties outlined above, employing illegal workers can jeopardise a sponsor’s ability to recruit migrant workers and licences can be suspended, downgraded, or revoked as a result – causing serious business disruption in the process.

What is changing?

In August 2023, the government announced proposed changes to the civil penalty scheme would come into force in ‘early’ 2024.

Once the changes are formally implemented, the civil penalty for a fist time breach will be up to £45,000 per worker, rising significantly from the current limit of £15,000. Repeat offenders face a 300% increase in fines of up to £60,000 per worker.

What should employers do now?

Employers have a duty to prevent illegal working. To comply with that duty, you should:

  • Carry out right to work checks on all prospective employees before they start employment. Consult the government guidance to ensure you are conducting the correct check based on the employee’s individual circumstances.
  • Make and retain a copy of all checks carried out, including details of when the check was made. Conduct follow up checks on any employees with time-limited permission to live and work in the UK.
  • Ensure staff are familiar with government guidance on carrying out right to work checks and carry out refresher training when processes are amended – it happens regularly.
  • Do not employ anyone who has not completed a right to work check, or who you have cause to believe does not have permission to work in the UK.
  • Act quickly if faced with suspected illegal working. Seek specialist legal advice and engage fully with the Home Office at the earliest opportunity to potentially mitigate any enforcement action.

Our Corporate Immigration team routinely assist clients with complex right to work issues. For more information, or to explore right to work training for your business, please contact Rob Tubman, Associate or Mollie Thompson, Solicitor.

Date published: 04 January 2024