Right to work checks – an issue for both immigration and employment law and practice.

Right to work’ checks have been in existence since time began, or at least since immigration became more of a codified practice; in the US, certain states began implementing them as early as the 1940’s. In the UK the basis of the current provisions come from the 2006 Immigration, Asylum and Nationality Act and the particular provision (section 15) relating to liability to a civil penalty for employing someone without the right to work in the UK came into force on 29 February 2008.

So, what is a right to work check and when is it relevant to the process of hiring an overseas worker? While in employment, an individual's right to work is a consideration at the beginning, at the recruitment phase, in immigration, right to work checks are generally not undertaken until the end of the process, as a last step before an overseas person begins working for you. Ultimately, the aim remains the same: to protect your business (as stated in the 2006 Act) from liability to a civil penalty.

The Home Office has recently published the latest list of businesses that have received such penalties from across the UK, with the penalties starting at £10,000. There are clear reputational issues at stake from this type of naming and shaming, so getting it right has never been more important. If you knowingly employ someone who doesn’t have the right to work in the UK (or had reasonable cause to believe), the sanctions can be worse.

A right to work check is just that – checking that an individual has the right to work for you in the UK. However, with the legislation and the myriad of options of paperwork that an individual may have to prove their right to work, it is often not so straightforward.

What can a business to do to get it right:

- Make sure that it has procedures in place so that a right to work check is carried out for every employee before they start work;

- Diarise follow-up checks as required;

- Have a process for their procedures to stay up to date;

- Include a clause to inform the employer in the employment contract should a person’s situation change;

- Obtain legal advice where necessary.

If you are concerned about your position as an employer, we can guide you through the process and help you put procedures in place to protect you from a civil penalty.