Migrant workers

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It is important that you are aware of your responsibilities when employing someone. The law on preventing illegal working is set out in the Immigration, Asylum and Nationality Act 2006. The act covers all aspects of immigration, from asylum seekers through to permanent migration, including the right to work and study in the UK.

On the basis of this legislation, the Home Office develops and implements the UK’s immigration rules, which provide the detail as to how the act is carried out. For more information, see the Gov.uk advice on checking a job applicant’s right to work in the UK. These rules are updated on a regular basis, so it is worth checking the site regularly for any changes.

If you employ, or plan to employ someone, including UK nationals, you need to make sure that they have permission to work in the UK before they start.

Note: You do not have to check existing employees from the EU, EEA or Switzerland if they came to the UK before 1 July 2021.

Employers must do one of the following before the employee commences employment, to ensure that they are entitled to work in the UK:

1. A manual right to work check.

2. A right to work check using Identity Document Validation Technology (IDVT) via the services of a certified Identity Service Provider (IDSP).

3. A Home Office online right to work check.

There is a three-stage process for checking whether a person has the right to work in the UK:

Step 1: Obtain

Depending on where the person is from, you need to obtain documents that show that the person has the right to work in the UK. You can check which documents you need to obtain using the Home Office’s online check: gov.uk/legal-right-work-uk.

Step 2: Check

You must check that the documents you receive are originals, genuine and have not been altered, and that the person presenting them is the rightful holder of the documents. You must also check that:

1. Photographs and dates of birth are consistent across documents and with the person’s appearance in order to detect impersonation.

2. Expiry dates for permission to be in the UK have not passed.

3. Any work restrictions to determine if they are allowed to do the type of work on offer (for students who have limited permission to work during term-times, you must also obtain, copy and retain details of their academic term and vacation times covering the duration of their period of study in the UK for which they will be employed).

4. The reasons for any difference in names across documents can be explained by providing evidence (for example an original marriage certificate, divorce decree absolute, deed poll). These supporting documents must also be photocopied and a copy retained.

Care should be taken over the following aspects of the documentation provided.

• Photographs: does the person look like the photographs on their documents?
• Date of birth: is the date consistent with the appearance of the candidate?
• Expiry dates: are the documents still valid?
• Stamps and endorsements: do the passport stamps allow your job applicant to do the type of work you are offering?
• Name: is the same name used on all the documents?

The Public Register of Authentic Identification and Travel Documents Online(PRADO) can help you ascertain the authenticity of a document.

Step 3: Copy

You must make a clear copy of each document in a format which cannot manually be altered and retain the copy securely, electronically or in hard copy. You must also retain a secure record of the date on which you made the check. Simply writing a date on the copy document does not, in itself, confirm that this is the actual date when the check was undertaken. If you write a date on the copy document, you must also record that this is the date on which you conducted the check.

You must copy and retain copies of:

1. Passports: any page with the document expiry date, the holder’s nationality, date of birth, signature, immigration permission, expiry date, biometric details, photograph and any page containing information indicating that the holder has an entitlement to enter or remain in the UK (visa or entry stamp) and undertake the work in question. The front cover no longer has to be copied.

2. All other documents: the document in full, including both sides of an Immigration Status Document and an Application Registration Card.

All copies of documents taken should be kept securely for the duration of the worker’s employment and for two years afterwards. The copy must then be securely destroyed.

Penalties for non-compliance

Penalties include:

• A civil penalty of up to £20,000 per illegal worker;
• In serious cases, a criminal conviction carrying a prison sentence of up to five years and an unlimited fine;
• Closure of the business and a compliance order issued by the court;
• Disqualification as a director;
• Not being able to sponsor migrants;
• Seizure of earnings made as a result of illegal working, and;
• Review and possible revocation of a licence in the alcohol and late-night refreshment sector and the private hire vehicle and taxi sector.

The Government has introduced a points-based migration system for people living overseas who want to live and work in the UK. Migrants need to pass a points-based assessment before they are given permission to enter or remain in the UK.

Under the points-based scheme, applicants are required to score 70 points.

To achieve the 70 points, the applicants must meet three mandatory requirements which together provide 50 points:

• They have a job offer from a Home Office licensed sponsor.
• The job offer is at the required skill level: RQF 3 or above (A-Level and equivalent).
• They speak English to the required standard.

To gain the additional 20 points, the job offer must meet the applicable minimum salary threshold (£25,600, or the specific salary requirement for their occupation, known as the ‘going rate’).

Alternatively, the job offer may be as low as £20,480, provided that the applicant can gain 20 points by:

• Filling a job in an occupation where the Migration Advisory Committee has designated a skills shortage.
• Having a PhD in a relevant subject.
• Having a PhD in a STEM subject where they will be able to trade characteristics, such as their qualifications, against a lower salary to get the required number of points.

If the job offer is less than the minimum salary requirement, but no less than £20,480, an applicant may still be eligible if they have:

• A job offer in a specific shortage occupation.
• A PhD relevant to the job.
• A PhD in a relevant STEM subject.

Note: There are different salary rules for ‘new entrants’ at the start of their careers.

If you aim to employ someone from overseas, you must have a sponsorship licence. Applications for a licence can be made online and the licence lasts for four years. The licence fee is £536 for businesses with fewer than 50 employees, and £1,476 for businesses with more than 50 employees. (The fee is per business rather than per employee). For more information, see the UK visa sponsorship for employers advice on Gov.uk.