Checking the employee’s right to work

By Tolley in association with Sarah Bradford
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The following Employment Tax guidance note by Tolley in association with Sarah Bradford provides comprehensive and up to date tax information covering:

  • Checking the employee’s right to work
  • Introduction
  • Who has a legal right to work in the UK?
  • The need to check in every case
  • What checks must the employer carry out?
  • Later checks
  • Additional checks where the employee is a non-EEA student
  • Civil Penalties

Introduction

Under the Immigration, Asylum and Nationality Act 2006 employers have a duty to prevent illegal working in the UK. As part of the process of taking on a new employee, an employer should check that the individual in question is legally entitled to work in the UK. Employers are obliged to check a document that is regarded as acceptable for showing permission to work in the UK. The initial checks should be carried out before employing a person. Follow-up checks should also be carried out where a person’s right to work in the UK is time-limited. While there is no penalty for simply failing to carry out such a check, if an employer is found to be employing someone who does not have a legal right to work in the UK, the employer can face a civil penalty of up to £20,000 in respect of each illegal worker. If the employer knows that an individual does not have the right to work in the UK but employs them anyway, that is a criminal offence for which the penalty is an unlimited fine and / or up to two years in jail.

Immigration, Asylum and Nationality Act 2006, ss 15–25 (subscription sensitive)
Who has a legal right to work in the UK?

A right to work in the UK may be a permanent right or one that is only granted for a limited period.

Permanent right

The following have a permanent right to work in the UK:

  • British citizens
  • nationals of a member state of the European Economic Area (EEA) or Switzerland (although special rules apply to Croatian nationals – see below)
  • family members of a British citizen or an EEA