The Immigration, Asylum and Nationality Act 2006 places all UK employers under a statutory duty to prevent illegal working in the UK. Consequently, it is the employer’s responsibility to ensure that their employees have the right to work in the UK by first checking they have the correct permission and second, by retaining documentary evidence of the individual’s eligibility.
In July last year, we discussed the most recent guidance from the Home Office on right to work checks which was published on 12 July 2016. We noted that it captures changes following introduction of the offences under s.24B IA 1971 and amendment to s.21 IANA 2006.
In relation to s.24B, the guidance explains that the offence of illegal working is not limited to employment but is intended to cover all types of work, including apprenticeships and self-employment.
We note that not all businesses hire employees directly; indeed, the use of temporary workers supplied by agencies is widespread. Our business immigration lawyers are often asked what an employer’s obligations are when it comes to right to work checks on these workers.
According to the guidance, provided the agency worker remains employed by the agency throughout their contract, it is the agency’s legal responsibility to make relevant checks on their right to work status – it is not for the employer to do this. Employing agencies must ensure that all the pre-employment screening is satisfactorily completed and that workers are legally entitled to work in the UK.
However, we would contend that businesses using temporary workers supplied by an agency should not take it for granted that the agency has carried out the prescribed document checks. It is good practice to seek a written undertaking/warranty from the agency that it has carried out the prescribed document checks correctly and in line with the Home Office’s guidance. If this assurance is not forthcoming, it should set alarm bells ringing.
If, however, you use an employment agency to recruit an employee who will be employed directly by you, the responsibility for carrying out the right to work check rests with you. You cannot delegate the check to the agency and you may be liable for a penalty if you do this.
Remember, employers found to be employing a person who is not allowed to work in the UK can be fined up to £20,000 for each illegal worker. It is therefore wise to go above and beyond to ensure your workforce have the correct permission to work for you.
Clarkslegal's business immigration lawyers regularly provide comprehensive training to HR teams and know how seminars to help HR staff understand the importance of carrying out correct checks. For further information, please contact our business immigration team on 020 7539 8000.