Prevention of Illegal Working Legislation

The UK applies tough sanctions to employers who are found to be employing individuals who do not have appropriate immigration permission to work. Employers can protect themselves by carrying out compliant right to work checks.

The legislation – Immigration, Asylum and Nationality Act 2006
The primary legislation on illegal working in the UK is set out in section 15 to 25 of the Immigration, Asylum and Nationality Act 2006 (‘IANA’).

Under section 15(1) of the IANA, an employer found to be employing an individual who requires, but does not have, the right to work in the UK, or is working in breach of their conditions of leave, may face a substantial civil penalty.

Under section 15(3) of the IANA, an employer will be excused from paying a civil penalty if they can demonstrate that they have carried out a compliant right to work check. This is known as a statutory excuse and must be maintained throughout the entirety of the individual’s employment if the employer is to avoid a civil penalty.

An employer can be held criminally liable under section 21 IANA if they employ an individual who requires, but does not have, the right to work in the UK, or who is working in breach of their conditions of leave and the employer knew or had reasonable cause to believe that the individual was disqualified from employment.

Who is subject to immigration control
The following individuals are not subject to UK immigration control:

• British and Irish citizens;
• Nationals of the Common Travel Area;
• Commonwealth citizens and citizens of the UK and Colonies with the right of abode.

The criminal offence of working illegally for individuals
In addition to the offence an employer may commit, pursuant to section 24B of the Immigration Act 1971 a criminal offence may also be committed by an individual.

This legislation may be applied in circumstances where an individual works without permission and they know, or have reasonable cause to believe, that they are disqualified from taking up employment as a result of their immigration status.

This offence is defined very broadly. Under section 24B(10) an individual would be deemed to be working if they were working:

• under a contract of employment;
• under a contract of apprenticeship;
• under a contract to personally do work;
• for a purpose related to the sales of goods; or
• under or for a contract for services.

How we can help
Our immigration experts are able to provide advice and guidance in relation to an employer’s duties under the right to work legislation to ensure that they are complying with their duties and are able to establish a statutory excuse when necessary.

If your organisation requires legal assistance in this area or would just like to discuss your situation with a member of our team on a no-obligation basis, please contact us.