An employer can only employ an individual who has permission to live and work in the UK. British citizens are exempt from immigration control and can automatically settle and work in the UK. Some Commonwealth citizens have a right of abode in the UK and therefore have the right to the same treatment as a British citizen in relation to their ability to work. However, Commonwealth citizens without a right of abode require leave to enter the UK. European Economic Area (EEA) and Swiss nationals also have an automatic right to work or to look for work, study etc in any of the EEA countries. These rights are known as the rights of free movement under EU law.
Visitors to the UK are not allowed to do paid or unpaid work in the UK during their visit. However, a business visitor is of course permitted to carry out business activities that are directly linked to any employment or business abroad
However, if an individual does not fall within one of the above groups, they will require leave to enter or remain in the UK. An individual with indefinite leave of this nature can live and work in the UK without restriction.
Employers have the responsibility to prevent illegal migrant working in the UK. Employers who unlawfully employ illegal migrant workers will be subject to a system of civil penalties under the Immigration, Asylum and Nationality Act 2006. To avoid liability for this civil penalty, employers should obtain all necessary documentation for potentially suitable candidates. The penalty has increased to £10,000 for each illegal migrant worker. The penalty for an employer who knowingly employs an illegal worker is a maximum two year prison sentence and /or an unlimited fine.
Satisfactory documentary proof of the right to work falls into two groups. Employers are required to check documentation from List A or List B (see below) formerly known as List 1 & 2. The employer must ask to see one original document from List A or a combination of two documents from List B. To establish a Statutory Excuse (the Excuse), all documentation MUST be checked and copied BEFORE the person commences employment with the company. This will provide an Excuse against payment of a civil penalty.
The current arrangements under the 2006 Act for establishing the excuse only apply to those employees who started working for an employer on or after 29 February 2008.
Employers will still be liable for prosecution under The Asylum and Immigration Act 1996 where illegal migrants have been employed between 27 January 1997 and 28 February 2008 and the employer did not establish the statutory defence at the point of recruitment.
Equally, if a statutory defence under section 8 of the 1996 Act has been established for employees taken on before 29 February 2008, this will be retained for the duration of that
person’s employment.
The documentations outlined in List A establish that the person has an ongoing entitlement to work in the UK. If reasonable steps are taken to check the validity of a document or documents from the first group, List A, the statutory excuse will have been established for the duration of the employment and no further checks will be required.
List A includes:
- Identity card or passport showing that the holder is a British citizen
- Identity card identifying the holder as a national of the EEA or Switzerland
- A residence permit
- A permanent residence card
- A biometric immigration document
- A passport showing that the holder is allowed to stay indefinitely in the UK
- An immigration status document issued by the Home Office
- Full birth certificate issued in the UK
- Full adoption certificate issued in the UK
- A birth certificate issued in the Channel Islands, Isle of Man or Ireland
- An adoption certificate issued in the Channel Islands, Isle of Man or Ireland
- A certificate of registration or naturalisation as a British citizen
- A letter from the Home Office or UK Border Agency which indicates that the person is allowed to stay indefinitely in the UK
The documentations outlined in List B indicate that the person has restrictions on their entitlement to work in the UK. Where the documents provided are from List B, the employer must conduct annual checks to retain the original excuse.
List B includes:
- A passport or travel document endorsed to show that the holder is allowed to stay in the UK and is allowed to do the type of work in question, provided that it does not require the issue of a work permit
- A biometric immigration document issued by the UK Border Agency (UKBA) to the holder which indicates that the person named in it can stay in the UK and is allowed to do the work in question
- A work permit or other approval to take employment issued by the Home Office or the UKBA when produced in combination with either a passport or another travel document endorsed to show the holder is allowed to stay in the UK and is allowed to do the work in question, or a letter issued by the Home Office or the UKBA to the holder or the employer or prospective employer confirming the same
- A certificate of application issued by the Home Office or the UKBA to or for a family member of a national of a European Economic Area (EEA) country or Switzerland stating that the holder is permitted to take employment which is less than six months old when produced in combination with evidence of verification by the UKBA Employer Checking Service
- A residence card or document issued by the Home Office or the UKBA to a family member of a national of an EEA country or Switzerland
- An application registration card issued by the Home Office or the UKBA stating that the holder is permitted to take employment, when produced in combination with evidence of verification by the BIA Employer Checking Service
- An immigration status document issued by the Home Office or the UKBA to the holder with an endorsement indicating that the person named in it can stay in the UK, and is allowed to do the type of work in question, when produced in combination with an official document giving the person's permanent National Insurance number and their name issued by a government agency or a previous employer (e.g. P45, P60, National Insurance card)
- A letter issued by the Home Office or the UKBA to the holder or the employer or prospective employer, which indicates that the person named in it can stay in the UK and is allowed to do the work in question when produced in combination with an official document giving the person's permanent National Insurance number and their name issued by a government agency or a previous employer (e.g. P45, P60, National Insurance card)
- If the person gives an employer two documents that show different names, the employer should ask for further documentation (e.g. marriage certificate) to explain the reason for this.
The employer must check the photographs on the documents and ensure that they are consistent with the person’s appearance.
The employer must check the date of birth stated on the document to ensure that they are satisfied that the dates are consistent with the appearance of the person.
The employer must copy/scan the documents and keep in the persons personnel file.
Where employees transfer under TUPE, the employer must complete the checks and retain copies within 28 days of the transfer date.
All documentation should be kept for two years after the employee leaves employment. The UK Border Agency may want to check that the employer had the right to the excuse.
In order to avoid discrimination claims, employers should ensure that they treat all applicants in the same way at each stage of the recruitment process.