Q&As

When conducting right to work checks—should this be for both workers and employees or just employees?

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Published on LexisPSL on 18/09/2017

The following Immigration Q&A provides comprehensive and up to date legal information covering:

  • When conducting right to work checks—should this be for both workers and employees or just employees?
  • Croatian workers

When conducting right to work checks—should this be for both workers and employees or just employees?

A system of civil and criminal penalties for employers who hire illegal workers exists for employment commencing from 29 February 2008 under the Immigration, Asylum and Nationality Act 2006.

A person is an illegal worker if he is a person aged 16 or over who requires leave to enter or remain under the Immigration Act 1971 and:

  1. he has not been granted leave to enter or remain in the UK, or

  2. his leave to enter or remain is not valid or has ceased to have effect for any reason, or

  3. his leave to enter or remain is subject to a condition precluding him from taking up employment

For the purposes of illegal working legislation, employment is considered to be any employment relationship that is under a contract of service or apprenticeship, whether expressed or implied and whether oral or written. In other words, the civil and criminal offences that an employer can commit arise only in relation to its employees and apprentices. 'Employees' refers only to those employed under a contract of employment. As uncertainties can arise in practice as to who is and is not an employee, it is common for employers to err on the side of caution and check any individual working for them.

Engaging or hiring other categories

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