Preventing Illegal Working: Employer's Guide

Employing illegal workers carries severe penalties. Understanding your obligations protects your business.

The Legal Framework

Civil Penalties

You face civil penalties if you employ someone:

• Not entitled to work in the UK
• Working in breach of their conditions

Regardless of whether you knew.

Criminal Offence

It's a criminal offence to:

• Knowingly employ an illegal worker
• Have "reasonable cause to believe" they're not entitled to work

Penalties: Up to 5 years' imprisonment, unlimited fine.

Civil Penalty Amounts

Current Penalty Levels (2024)

Situation	First Offence	Repeat Offence
No right to work check done	Up to £45,000	Up to £60,000
Check done but not compliant	Reduced penalty	Reduced penalty
Valid statutory excuse	£0 (no penalty)	£0 (no penalty)

Per illegal worker - employing 3 illegal workers could mean £180,000.

The Statutory Excuse

What It Is

A defence against civil penalties if:

• You conducted a compliant right to work check
• Before employment started
• And at appropriate intervals (for time-limited workers)

What It Doesn't Cover

The statutory excuse doesn't protect against:

• Criminal prosecution (if you knew)
• Where you clearly should have known
• Where documents were obviously fraudulent

Establishing a Statutory Excuse

Step 1: Check Before Employment

Before the person starts work:

• Obtain original documents
• Check in the person's presence
• Verify the person is the rightful holder
• Make a clear copy
• Record the date of check

Step 2: Acceptable Documents

List A documents (permanent right to work):

• UK or Irish passport
• Permanent residence card
• Certificate of registration/naturalisation with passport

List B documents (time-limited right to work):

• Biometric residence permit with time limit
• Frontier worker permit
• Visa with work permission

Step 3: Verify Authenticity

Check that documents:

• Are genuine (not obviously fraudulent)
• Relate to the person presenting them
• Allow them to do the work offered
• Are current (not expired, where relevant)

Step 4: Follow-Up Checks

For time-limited workers:

• Check again before permission expires
• Or every 12 months, if no expiry date

Step 5: Retain Evidence

Keep copies of:

• Documents checked
• Date of each check
• Method of verification (manual or online)

Retain for 2 years after employment ends.

Online Right to Work Checks

When to Use

Can use Home Office online checking service when:

• Person has biometric residence permit
• Person has biometric residence card
• Person has eVisa
• Person used EU Settlement Scheme

How It Works

1. Employee gets share code from GOV.UK
2. Employer uses code on checking service
3. Service confirms right to work status
4. Print/save result

Benefits

• Confirms status directly with Home Office
• Can reveal issues not visible on documents
• Increasingly the expected method

Employer Checking Service

For Specific Situations

Contact Home Office Employer Checking Service when:

• Employee has pending immigration application
• Employee is awaiting appeal decision
• Certificate of Application (CoA) holder
• Online check shows "contact ECS"

Process

• Request verification from ECS
• Receive Positive Verification Notice (PVN)
• Follow-up checks every 6 months while PVN in place

Red Flags

Document Issues

Be alert to:

• Documents that don't match the person
• Photos that look altered
• Inconsistent information across documents
• Documents in poor condition (possibly altered)
• Dates that have been changed
• Work restrictions that don't fit the job

Situation Issues

Be cautious if:

• Employee reluctant to provide documents
• Evasive about immigration status
• Documents lost/stolen repeatedly
• Third party providing documents
• Suspiciously low wage expectations

If Suspicious

• Don't accuse directly
• Complete checks thoroughly
• Consider ECS verification
• Document your concerns
• Seek advice if unsure

Home Office Enforcement

Types of Visits

Intelligence-led visits: Based on specific information.

Targeted visits: Based on sector/area risks.

Follow-up visits: After previous penalties.

What Officers Can Do

With warrant or consent:

• Enter and search premises
• Examine documents
• Interview workers
• Seize documents as evidence
• Arrest suspected illegal workers

Your Rights

• Ask for identification
• Request to see warrant
• Have legal representative present
• Time to contact solicitor (within reason)
• Refuse consent (they may get warrant)

During a Visit

1. Stay calm - Cooperate professionally
2. Identify officers - Request warrant cards
3. Understand scope - What are they checking?
4. Accompany officers - Keep track of what they access
5. Take notes - Record what happens
6. Provide documents - Right to work records
7. Contact solicitor - If concerned about process

Civil Penalty Process

Referral Notice

Home Office sends referral notice if:

• Believed to have employed illegal worker
• Checks weren't compliant

You have 28 days to respond with:

• Objection (challenging the finding)
• Representations (requesting reduced penalty)

Penalty Notice

If penalty proceeds:

• Specifies amount
• Payment instructions
• Appeal rights

Objections

Can object on grounds:

• Person was entitled to work
• Statutory excuse established
• Procedural errors

Appeal

Can appeal to court if:

• Objection unsuccessful
• Disagree with penalty decision
• Within 28 days of penalty notice

Reducing Penalties

Mitigating Factors

Home Office considers:

• Partial compliance with checks
• Cooperation with investigation
• Active compliance culture
• Steps to prevent recurrence
• Reporting suspected illegal workers

Aggravating Factors

Penalties increase if:

• Previous penalties
• Deliberately employed illegal worker
• Exploitation of workers
• Obstruction of investigation

Record Keeping

What to Keep

• Copy of documents checked
• Date of check
• Online check results
• ECS verification notices
• Follow-up check dates

How Long

Keep for at least 2 years after employment ends.

How to Store

• Secure storage
• Easily retrievable
• Compliant with data protection

Compliance Programme

Policies

Implement:

• Right to work policy
• Training for hiring managers
• Audit procedures
• Incident response plan

Training

Train staff on:

• Document checking
• Recognising fraud
• Follow-up requirements
• Escalation procedures

Audits

Regularly audit:

• Are checks being done?
• Are records complete?
• Are follow-ups happening?
• Any gaps or errors?

If You Discover Illegal Working

Immediate Steps

1. Stop and think - Don't act hastily
2. Verify the situation - Is there definitely a problem?
3. Take advice - Contact solicitor
4. Consider reporting - May reduce penalty
5. Employment decision - Usually must terminate

Termination

If worker has no right to work:

• Cannot continue to employ them
• Termination is usually fair
• Follow appropriate process
• Document the reason

Reporting

Voluntary reporting:

• May be mitigating factor
• Shows compliance culture
• Contact Home Office
• Doesn't guarantee no penalty

Common Mistakes

1. Checking After Start Date

Problem: Loses statutory excuse.

Solution: Always check before first day of work.

2. Not Checking Everyone

Problem: Discrimination risk and compliance gaps.

Solution: Check all employees, regardless of appearance/accent.

3. Accepting Copies

Problem: Must see originals.

Solution: Always require original documents in person.

4. Forgetting Follow-Ups

Problem: Loses statutory excuse when permission expires.

Solution: Diary system for follow-up checks.

5. Poor Record Keeping

Problem: Can't prove checks done.

Solution: Clear, dated copies stored securely.

Checklist

Before Hiring

• Check documents before start date
• Use correct document list
• Check in person
• Verify authenticity
• Make clear copies
• Record date of check

For Time-Limited Workers

• Note expiry date
• Schedule follow-up check
• Conduct follow-up before expiry
• Record follow-up check

Ongoing

• Train hiring managers
• Audit compliance regularly
• Update for law changes
• Maintain secure records

If Enforcement Visit

• Cooperate professionally
• Request identification
• Provide requested documents
• Keep notes
• Contact legal advice