Some people are automatically entitled to work in the UK. Others may have restrictions on whether they can work, how long they can stay and the type of work they can do.
It is important to follow set procedures and to ascertain whether or not a person is eligible to work in the UK before employing them. If you ignore this, you run the risk of facing prosecution for illegally offering work to somebody who is not eligible to take that job.
It’s worth remembering, when checking an employee’s eligibility, that many people from minority groups who live in the UK are British citizens so it is necessary to ensure that your recruitment process does not discriminate against a person on the basis of their Racial Background.
Checking a Person’s Entitlement to Work in The UK
It is a criminal offence to employ anyone who is subject to immigration control who doesn’t have the necessary paperwork to work in the UK or to do the kind of job you’re offering. The maximum penalty is £5000 per illegal employee upon summary conviction in a magistrate’s court. However, there is no upper limit to the fine imposed by a Crown Court following indictment.
There are, by law, two lists of documents acceptable as evidence of legal working status in the UK. More information about these lists can be obtained from the Home Office. You must ask prospective employees to produce one of the original documents from list 1 or two of the original documents from the combinations in list 2. They must be original documents which can be authenticated, not photocopies or faxed copies, and must be on the list as outlined by the Home Office. For example, a P45 or P60 no longer provides an employer with a statutory defence if produced on its own as it’s now on list 2 so another valid document from that list is required by law in addition.
You must take all reasonable steps to ensure that your potential employee is the rightful owner of the presented documents. Any specific information within a passport or other travel document should indicate that the individual is permitted to undertake the kind of work you are offering. In addition, you should ensure that you follow the revised Code of Practice on racial equality in employment which was introduced in 2005 and became statutory in April 2006. More details about this can be obtained from the Commission of Racial Equality (CRE).
It is also crucial to keep copies of all documents in their entirety as the Immigration Service can examine your right to defence if they suspect anyone illegally working for you. It isn’t appropriate, however, to keep hold of all the original documents. They should be copied in full and the originals returned to the owner. You should also keep hold of these copied documents for a minimum of 3 years after the employee has ceased working for you.
Who Doesn’t Need Permission to Work?
The main groups not subject to immigration control and who are employable without restriction are:
- British citizens
- Commonwealth citizens with the right of abode in the UK
- European Economic Area (EEA) and Swiss nationals – although some will need to register with the Home Office. * NB – It’s important to contact the Home Office to establish if a potential employee comes from one of the permitted countries in the EEA.
- Family members of nationals from EEA countries and Switzerland, providing that the EEA national is lawfully residing in the UK.
Other Employment Routes
In addition to the eligibility criteria already mentioned, there are also managed migration routes available to allow overseas nationals to work in the UK without work permits. These include those entering under the ‘Highly Skilled Migrant Programme’ which is an individual migration route for highly skilled people to come to the UK for work or self-employment opportunities. Other routes include the ‘Working Holidaymaker Scheme’ whereby Commonwealth citizens between the ages of 17 and 30 can come to the UK for an extended holiday of up to 2 years and are entitled to work for up to 12 months during their stay under the scheme.
Students from outside the EEA membership countries who are over 16 are also allowed to take some work in the UK, providing they adhere to the conditions of entry and are given leave as a student. However, there are conditions. You can only employ a student for up to 20 hours per week during term-time, except where the placement is to meet the definition of their sandwich course or internship. You can employ them full-time outside term-time as long as they still have valid leave. A student from outside the EEA must neither work outside their valid leave, engage in business or self-employment, provide services as a professional sportsperson or entertainer nor must they fill a permanent, full-time vacancy.
If in doubt or you wish to find out further information, contact the Home Office or Immigration Service.