Right to Work in the UK – Immigration Status
The Immigration, Asylum and Nationality Act 2006 provides that it is a criminal offence to employ a person knowing that they are not legally entitled to work in the UK. Imprisonment and/or financial penalties apply to directors who employ staff working illegally. An employer should retain evidence to show that an employee has a right to work in the UK. Depending on the evidential documents provided by the employee, re-checks may be necessary over time.
If you are a citizen of the United Kingdom, Switzerland or one of the following European Economic Area (EEA) countries, you have the right to work in the UK.
There are a variety of visas available for individuals to attain in order to be eligible to work in the UK if they are not EU citizens. Further details can be found on the following government website https://www.gov.uk/browse/visas-immigration.
Avoiding Discrimination Allegations
In conducting any recruitment exercise that attracts foreign national applicants, businesses should be careful not to discriminate on the grounds of nationality. For example, employers should not automatically rule out applications from non-EEA foreign nationals requiring permits to work in the UK. Whilst it is unlawful to treat a job applicant less favourably on the grounds of race/nationality, an Employer must establish whether the Employee has the appropriate immigration visa to work for their business - once the appropriate candidate has been selected.
The Employer must make any offer of employment conditional on the foreign national employee obtaining and maintaining appropriate immigration status. There must also be a term written into the contract of employment that obliges the Employee to ensure that the appropriate immigration status for the purposes of employment is maintained whilst the Employee remains employed by the company.
Evidence of Right to Work
There are two separate lists to evidence a right to work:
List A documents show that the holder is not subject to immigration control, or has no restrictions on their stay, so they have an ongoing right to work in the UK. These documents could be a person's passport, residence permit or birth certificate. A full list of documents can be found here http://www.legislation.gov.uk/uksi/2007/3290/schedule/made.
For staff from outside the UK and EEA countries, evidence in the form of List B is necessary. List B documents show that the holder has been granted leave to enter or remain in the UK for a limited period of time and, or, has restrictions on their right to work.
List B specifies documents that need to be checked at least once every 12 months for employees with limited leave to enter or remain in the UK (both set out in a schedule to SI 2007/3290).
An employer can be fined up to £20,000 per illegal worker. Illegal workers include:
- students with expired visas, or students working more hours than they are allowed to;
- people who work on a visitor’s visa;
- people who have no right to work.
Furthermore, a director can receive a jail sentence for up to two years and receive an unlimited fine if they are found to have knowingly employed an illegal worker.
Avoiding Data Protection Penalties
Checking and copying one of the original documents, or a specified combination of original documents (listed in List A or B), before employing a person can provide an employer with a statutory excuse against liability for a civil penalty.
Disclaimer: This article does not contain a full statement of the law and it does not constitute legal advice. Please contact the Employment Law Team on 020 3743 0600 if you have any questions about the information set out above.