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Prevention of Illegal Working

21 September 2017
Prevention of Illegal Working

All Employers should be aware that it is unlawful to employ someone who does not have the right to live and the right to work in the UK or who is working in breach of their conditions of stay.

Employers should comply with their obligation to prevent illegal working. They must:

  • Carry out “right to work” checks of all prospective employees before their employment commences;
  • Conduct follow-up checks on employees who have time-limited permission to live and work in the UK or require a document to show their right or an application pending at the Home Office;
  • Keep records of all the checks that are carried out; and
  • Not employ anyone who may be an illegal worker.

Employers who have a sponsorship licence must also comply with the sponsor management system requirements.

What happens if you do not comply with your obligations?

Employers in breach of their obligations may now be liable for a large civil penalty and would be committing a criminal office.

A civil penalty may be imposed if an employer employs someone without the right to undertake the work for which they are employed.

A criminal offence will be committed if the employer knew or had “reasonable cause to believe” that the employee did not have the appropriate immigration status.

The offence relates to an individual who is employed “ under a contract of service or apprenticeship.” However, an immigration officer may not have the time or resources to differentiate employees from consultants and other persons working at the employer’s premises. Therefore it is advisable for Employers to check all individuals ‘documents to ensure that everyone has the right to work.

If a business uses agency staff, it is advisable to ensure that the contract with the agency makes it clear that the agency remain the employer and is responsible for conducting the right to work checks.

For further information on prevention of illegal working, Sponsorship Management Systems or obtaining a sponsor licence please contact us on 020 7903 6888 or email contact@davenportsolicitors.com.

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