Right to Work Checks - Is Your House in Order?

Immigration compliance is more important than ever and right to work checks are a fundamental basic to get right.   

While Brexit has been dominating immigration headlines, the Home Office has been stepping up its enforcement activity considerably.  This has resulted in an increase in illegal working raids, together with an increased number of unannounced audits on businesses with, or applying for, sponsor licences.  

Key points

The most common grounds for suspension or revocation of a sponsor licence include a failure to keep adequate records and right to work checking failures. By way of illustration, in Quarter 1 of 2017: 

  • 186 Tier 2 licences were suspended and 148 revoked; and
  • 681 illegal working civil penalties were issued with a total value of £10.6m. 

Increased enforcement action fundamentally demonstrates the importance of conducting right to work checks and keeping compliant HR records. Compliance will mitigate the risk of businesses employing someone illegally and will provide a ‘statutory excuse’ if they do.   

Sanctions for non-compliance

The Immigration Act 2016 has strengthened the powers available to the Home Office when taking enforcement action, and these now include: 

  • a civil penalty fine of up to £20,000 per illegal worker;
  • a criminal conviction for the offence of employing an illegal worker which can carry a prison sentence of up to 5 years and an unlimited fine (‘officers’ of the business can be convicted, including a member, partner or anyone who acts (or purports to act) as a director, manager or secretary.  Members of the HR team can also be caught by these provisions);
  • since 1 December 2016, the Home Office can impose closure notices and compliance orders which quickly close a business premises where illegal working is being conducted, and place the employer under a compliance regime;
  • Disqualification as a director; and/or
  • Seizure of earnings made as a result of illegal working. 

Wider Repercussions

It is understood that the Home Office currently receives around 150 new sponsor licence applications every week, demonstrating a continued demand for talent from outside the UK.  

Looking further forward, businesses must consider the likely implications of Brexit and increased immigration control generally. For every one sponsored worker in the UK, there are believed to be approximately 10 EU migrants who the Government plans to bring under far stricter immigration control. Even those employers who have not yet felt the need to apply for a sponsor licence may find that they are unable to avoid the future immigration rules applicable to EU migrants.  A history of illegal working and non-compliance could impede the prospects of being able to employ these migrant workers too.  

Businesses also face reputational damage following enforcement action. Famously, Byron Restaurants hit the press last year after co-operating with the Home Office.  More recently Tayyabs in Whitechapel (one of London’s favourite curry houses) was issued with a closure notice in August.  The restaurant has since re-opened and made subject to a compliance order but, at the time the notice was issued, the restaurant already had civil penalty fines outstanding in the sum of £95,000.   

Key pointers for employers on right to work checks

1. Employers should carry out right to work checks on all prospective employees prior to employment commencing.

2. All contracts of employment should be reviewed to ensure they impose obligations on employees with regards to their right to work and provide for summary dismissal if this right lapses or is revoked at any time. 

3. Follow-up checks should be conducted on any employees with time-limited permission to live and work in the UK, and appropriate systems should be put in place to monitor visa expiry dates.

4. Records of all checks carried out should be maintained. 

5. Under no circumstances should employers hire anyone they know or about whom they have reasonable cause to believe is an illegal worker.