Ensuring your workers are eligible to work in the UK

Some people are automatically entitled to work in the UK. Others may have restrictions on how long they can stay, whether they can work or the type of work they can do.

All employers in the UK have a responsibility to prevent illegal migrant working. You must therefore check the entitlement of everyone you plan to employ to work in the UK.

If you fail to do this, you may be liable to pay a fine (known as a ‘civil penalty’). If you knowingly employ an illegal migrant worker, you may face criminal prosecution, which could result in an unlimited fine and/or a maximum two-year prison sentence.

This guide will tell you how to comply with the laws on checking the entitlement to work in the UK.

---

Checking a prospective worker’s entitlement to work in the UK

As an employer, you need to ensure that each prospective worker is eligible to work in the UK before their employment commences. By doing this, you will establish a ‘statutory excuse’ against being liable to pay a fine (known as a ‘civil penalty’) for employing an illegal worker.

You should make the necessary checks even if you think a potential worker has the right to work in the UK. For more information, see our guide on employing migrants – an overview.

Who is an employer?

An employer is defined as a person who employs an individual under a contract of employment.

This can be a contract of service or an apprenticeship. The contract can be expressed either orally or in writing. See our guide on the employment contract.

Checking the right to work in the UK

The UK Border Agency (UKBA) publishes two lists – List A and List B – of documents which can demonstrate someone’s right to work in the UK.

For you to have a statutory excuse against liability for a civil penalty, your prospective worker must provide you with an original version of one of the specified documents from List A, or a specified combination of two documents from List B.

Download guidance on checking List A and List B documents [opens in a new window].

You should ask them to provide the documents before they start work, eg you could ask:

• shortlisted applicants to bring the appropriate document(s) when they come for an interview
• the successful applicant to provide the appropriate document(s) before you make them an unconditional job offer

Once the worker has presented you with the necessary document(s), you must:

• satisfy yourself that the document(s) are valid and genuine, and have not been tampered with
• check that any photographs and birth dates on the documents match the applicant’s appearance
• check information in the job application against the documents to ensure the details match up
• check that the document(s) allow the worker to do the work on offer

Note that you are not expected to be an expert on forged documents. All you need to do is conduct simple – but careful – visual checks without the need for training or technological aids, to satisfy yourself that the document(s) presented are genuine, and relate to the person presenting them.

If you are not sure whether or not a document is valid, call the UKBA Sponsorship and Employers’ Helpline on Tel 0300 123 4699.

If the worker provides a document or documents from List B, you must repeat the checks at least once every 12 months to retain the excuse until they provide a specified document or documents from List A, or they leave your employment.

In order to avoid racial discrimination, you should check all applicants’ right to work in the UK – regardless of their race, ethnic or national origin, colour or (apparent) nationality.

Download the code of practice on preventing unlawful discrimination when checking the right to work in the UK [opens in a new window].

Penalties for employing an illegal worker

If you are found to be employing illegal migrant workers and you have not established a statutory excuse, you may have to pay a civil penalty of up to £10,000 per illegal migrant worker.

However, if you know that you are employing a person who is not permitted to work, you will not be entitled to the excuse.

You could also be prosecuted for the offence of knowingly employing an illegal migrant worker. If you are convicted of this offence, you could face an unlimited fine and/or a prison sentence of up to two years. You can find guidance on preventing illegal working on the UKBA website- Opens in a new window.

Reporting immigration offences

If you suspect that a job applicant is in the UK illegally or has no right to work in the UK, you should report them by sending an email to UKBApublicenquiries@ukba.gsi.gov.uk.

You can read guidance on reporting an illegal immigrant on the UKBA website.

---

Copying and retaining workers’ records

When a prospective worker gives you their relevant documents to prove that they have the right to work in the UK, you must keep a record of these documents. You must do this by either photocopying them or scanning and saving them electronically on a non-rewritable disk – eg CD-R or DVD-R.

With passports and travel documents, you must copy:

• the front cover
• the date of expiry
• any photographs and signature
• all of the pages giving the prospective worker’s personal details, including nationality
• pages containing a UK government stamp or endorsement which allows the prospective worker to do the work you are offering

You should copy other documents in their entirety.

Keep copies of the documents until two years after the worker’s employment ends. Having a record of every copied document will help you establish a statutory excuse if the UK Border Agency (UKBA) detects anyone working illegally for you.

If you lose any records, the UKBA may look at your normal recruitment procedures when considering if you have established a statutory excuse, eg if you have a consistent practice of copying documents for each worker.

You should not retain a person’s original documents, except for the purpose of copying them. The only exceptions are:

• when an individual gives you a P45 as part of a combination of documents, you should retain part 2 of the document for three years to comply with HM Revenue & Customs rules
• when you employ someone for 24 hours or less and it is not practicable to obtain a copy of the documents, you can retain the document(s) while they work for you but you must have facilities for keeping them safe

You must not keep a potential worker’s original documents for more than a day. If you deliberately keep, or retain without consent, a person’s passport or other original documents belonging to them, you may be guilty of an offence.

---

Compliance checks and penalties for immigration offences

Police and immigration officers have certain powers to enter business premises where they believe an immigration offence is being committed.

For the more serious immigration offences, an employer may be fined and/or prosecuted.

Compliance checks of sponsor businesses

If you are applying to become a licensed sponsor under the points-based system, the UK Border Agency (UKBA) may carry out checks before making a decision on your sponsorship application. You may also be visited by one of their visiting officers as part of this process.

The UKBA may also conduct checks and/or visits after you have been granted a sponsor licence.

Such checks/visits are carried out to make sure that the information you have given on the sponsorship application is accurate and that you are fulfilling all of the duties required of you as a licensed sponsor.

For more information, read guidance on sponsor applications on the UKBA website- Opens in a new window.

See our guide on employing migrants – an overview.

Compliance checks for immigration offences

The police and immigration officers have the power to arrest and remove an individual who:

• has entered the UK unlawfully
• no longer has the right to be in the UK

The police and immigration officers also have the power to:

• enter premises, including business premises, to arrest such individuals
• search, and in some cases seize, personnel records

However, this only applies when the individual is working and the police and immigration officers reasonably believe that the individual and/or their employer have committed an immigration offence.

Find guidance on immigration officers’ powers when seeking to enter business premises on the UKBA website- Opens in a new window.

You can also read about how to complain about the conduct of an immigration officer on the UKBA website- Opens in a new window.

Penalties for immigration offences

If they are found to have committed an immigration offence, employers may face any or a combination of the sanctions below. They may:

• receive a written warning or a fine (known as a ‘civil penalty’) for employing an illegal worker
• be prosecuted and fined for employing an unregistered A8 national prior to 1 April 2011 or an unauthorised A2 national with no permission to work in the UK
• be prosecuted for facilitation/trafficking
• be prosecuted for the procuring/use of fraudulent identity documents
• be prosecuted for knowingly employing an illegal migrant worker
• be disbarred as a company director/officer as a result of prosecution

For more information on A8 and A2 nationals, see our guide on employing migrants – an overview.

If the employer is a sponsor under the points-based system, they may also:

• be downgraded on the points-based system sponsorship register
• have their sponsor licence cancelled and be removed from the points-based system sponsorship register

---

CASE STUDY

Here’s how migrant workers contribute to our workforce

Based in Norfolk, Bernard Matthews Ltd is the largest and most successful turkey producer in Europe. As the company grew and expanded into new product areas, the need for labour increased dramatically, but labour shortages in the local area posed a real problem. Development services manager Steve Grant explains how recruiting migrant workers to bridge the gap has since evolved into an on-going employment diversity programme that has brought many business benefits.

WHAT I DID

Assess the business’ needs

“Companies of any size can face recruitment problems. In our case, rapid growth during the 1980s, plus the labour-intensive nature of the business, meant that we needed to recruit large numbers of workers.

“However, that was easier said than done – East Anglia has a mostly rural population spread over a very wide area and we also faced intense competition for labour from agricultural businesses in the area. Plus we had the added challenge of seasonality, meaning that we needed a large number of temporary workers to cope with the surge in demand around Christmas.

“We tried several solutions, including setting up our own bus service to bring in workers from all over the region, but we were still experiencing shortages. One obvious solution was to bring in workers from overseas, so despite some initial reservations, a decision was taken to explore that option.”

Introduce proper processes

“We went down the agency route to get us started. While that works fine for many businesses, we soon found that we wanted greater continuity among our migrant workforce.

“We therefore started researching ways to do the recruiting in-house. We consulted existing members of the workforce, contacted recruitment consultants overseas and gathered information from other businesses. We also worked closely with our local Jobcentre Plus, who provided excellent advice and contacts.
 
“There was a lot of trial and error involved, but we now have a streamlined recruitment process that starts before our migrant workers even set foot in the UK. We provide them with recruitment information and interviews in their own language, then help them to set up bank accounts and arrange accommodation before they arrive.

“On arrival we arrange inductions and language training with assistance from Learndirect, as well as providing a welcome pack incorporating practical information about local facilities like schools and transport, plus contact details of any local clubs or groups from their country of origin. We also have dedicated members of staff who liaise with the workers on a regular basis.”

Maximise the benefits

“When we started, I would never have dreamt how far the process would take us. Almost a third of our UK workforce is now made up of migrant workers, mostly Portuguese, but overall comprising nationals from over 30 different countries.

“Through careful selection and best-practice employment policies, our migrant workers consistently provide high standards of work, plus we have developed relationships with many of them meaning they come back to us year in, year out, when we need help over our busiest periods. This reduces our training costs, and reassures us that our temporary workers are already familiar with company policies and procedures.

“Employing migrant workers has also been beneficial for our company profile – for example we have been recognised by the Department for Business, Innovation & Skills as a best-practice employer, and we also won a Business in the Community Award in recognition of the work we do to help the workers integrate into the local community.”

WHAT I’D DO DIFFERENTLY

Make the decision sooner

“Looking back, we should have made the decision to employ migrant workers as soon as we started experiencing labour shortages. We were perhaps a bit too cautious to start with.”

Understand cultural differences better

“Over the years, we’ve built up quite a deep understanding of the cultural differences between various countries and nationalities, but at the outset we didn’t have that insight. More research would have helped us avoid a few culture clashes in the early days.”

---

CASE STUDY

Here’s how we check the entitlement of our staff to work in the UK

Founded in 1991, D&D London Ltd is one of the UK’s most dynamic restaurant groups, owning and managing some of London’s most popular restaurants, such as Quaglino’s and Bluebird. More than three quarters of the company’s employees are non-UK nationals, a choice that reflects the company’s policy to employ an ethnically and culturally diverse workforce. Here, human resources manager Holly Lowes-Bond explains the processes the company has developed to ensure employees are eligible to work in the UK.

WHAT I DID

Understand responsibilities

“We regularly receive and encourage job applications from non-UK nationals, partly because it’s a cultural tradition in the restaurant industry, but also because our mission to employ the best staff means we cast our recruitment net as wide as possible. However, D&D London has a zero tolerance policy on illegal working, so it’s vital to have appropriate procedures in place.

“As an employer, you have to be completely clear about your responsibilities. Our policy and guidelines have evolved over several years, but in principle we follow Home Office guidance to ensure that we comply with the law. The Home Office UK Border Agency website provides plenty of information and advice to help you to get started.”

Be methodical

“Our checking process begins at the point of application. We require every applicant to fill in and sign our application form, acknowledging that they have answered all questions honestly.

“When an employee attends an interview, we work through a comprehensive checklist we’ve developed. The first thing we ask for is visual ID, usually a passport, and any work permits held. We will occasionally conduct an interview without seeing the documents – for example when someone walks in off the street – but we always insist on the documents being produced before the employee starts work.

“We also satisfy ourselves as far as possible that the documents are genuine and belong to the holder. For example, we use a UV light – similar to those used for checking banknotes – to scan passports. We also use a website, documentchecker.com, which provides clear visuals and instructions on what to look for in passports and permits from various countries. Other measures include checking expiry dates and signatures, checking that the photo matches the person, checking that the date of birth on documents is consistent with the person’s appearance and checking that the plastic seal around the photo doesn’t appear to have been tampered with.

“Once the interviewer has completed the checklist and made a decision to employ, they sign the checklist to acknowledge that they are satisfied with the person’s eligibility to work.”

Keep records

“We make a copy of all the relevant pages of each document for our files. We also make a note of whether an employee needs to join the Home Office Worker Registration Scheme and we ask the employee to sign a document stating that they understand their requirement to register and the possible consequences of failing to do so. It’s important to provide clear explanations before they sign.

“We also make use of the reminders in Outlook to note key dates, such as visa expiration, so that we can remind employees of any action they need to take in order to remain employed by us. It’s helpful for them and helps us avoid disruptions.

“We conduct a basic document check every six months and a full ID audit once a year, when employees are required to bring in their ID, which managers check against our records. It’s a useful discipline for keeping records up to date, and gives us an opportunity to review procedures and incorporate key lessons.”

WHAT I’D DO DIFFERENTLY

Don’t delegate too much responsibility

“While it’s important to make all staff aware of employment policies, in the early days we were sometimes guilty of delegating too far down the line. These days we make sure that ultimate responsibility remains with the general manager of each business, even though other staff may contribute to the checking process.”

Introduce checklists sooner

“We’ve found that using a checklist is an invaluable tool, ensuring that nothing gets overlooked during the employment process. With the benefit of hindsight, we should have introduced them right from the start.”