Right to work checks and employing foreign nationals

Organisations are placed under a legal duty to prevent illegal working and can be subjected to penalties where they fail to do so. A criminal offence will be committed where an organisation employs an individual and they have ‘reasonable cause to believe’ they do not have the right to work in the UK.

• From 1 January 2021, new immigration law came into effect as a result of the end of freedom of movement between the UK and EU. More information on Brexit can be found here.
• To gain a statutory excuse against a civil penalty fine of up to £20,000 per worker, organisations should to carry out right-to-work checks in accordance with the Home Office’s three-step checking process. Organisations are encouraged to make offers of employment conditional upon the provision of satisfactory right-to-work documentation to ensure they secure the statutory excuse.  
• Since 29 January 2019, organisations can rely on the Home Office’s online right to work checking service to be granted the statutory excuse. Where the service can be used to check an individual’s immigration status, no further documentary checks are required.
• Since 1 January 2021, sponsorship licenses have been required to employ all overseas workers through the new ‘skilled worker' route, including from inside the EEA and Switzerland.

In August 2023, Home Secretary Suella Braverman confirmed that the penalty for employers for employing illegal workers, which was last increased in 2014, will be raised to up to £45,000 per illegal worker for a first breach from £15,000, and up to £60,000 for repeat breaches from £20,000.

The government will also begin consultation on options to strengthen action against licensed businesses who are employing illegal workers later this year.

It is not yet clear when these proposals will come into effect.