Illegal immigration and working are topics high on the agenda for the UK government. With stories of migrants attempting Channel crossings and data published by the government about the number of illegal workers caught, employers need to understand their obligations when taking on staff – the penalties are too stiff to ignore.
But just because illegal working is prevalent in certain business sectors – catering, car washes and nail bars, to name but a few – it doesn’t abrogate the need for every business to follow the law as illegal workers can emerge in the most unlikely of places. This is something that was revealed when a Border Force official was arrested for being an illegal immigrant in December 2022 (Taylor, 2022).
What right to work checks are required in veterinary practice?
Shabana Muneer, a director at Walker Morris, outlines that to work in the UK, an individual must have the legal right to work. Post-Brexit, this means “they must be a British or Irish citizen or have a UK immigration status which permits them to undertake employment”. She adds that “some immigration statuses will come with a conditional right to work – in certain roles or for a certain number of hours per week”.
‘Some immigration statuses will come with a conditional right to work – in certain roles or for a certain number of hours per week’
For Mark Stevens, a senior associate at VWV, it’s important to recognise that every employer has a duty to prevent illegal working. In practice, “this means that an employer must carry out checks to ensure that employees have the appropriate right to work in the UK,” he says. “It is unlawful to employ someone who does not have the appropriate right or who is in breach of the terms of their visa.” He explains that an employer found to be employing someone illegally without having carried out the prescribed checks could face criminal sanctions.
How do I check an employee’s right to work?
The Home Office has set out steps employers must follow to check an individual’s right to work before employment starts. These checks can be done manually or online and are set out by the Home Office in its “Right to work checks: an employer’s guide”. But Shabana warns us that “this changes frequently and the version of the guidance in force at the time the individual’s employment commences must be followed”.
In essence, to complete the checks manually, the employer must obtain original documents from the Home Office’s list of acceptable documents. They must:
- Check the documents are genuine by checking that names, photographs and dates of birth are consistent across the documents
- Check the expiry dates for any time-limited permission to be in the UK
- Check any work restrictions to find out if the prospective employee is able to do the work on offer
- Copy each document in a format that cannot manually be altered and retain the copy securely
Alternatively, Mark says “an employer may be able to use the Home Office online right to work check if the individual has been issued an eVisa”. He adds, however, that this will not be possible for every applicant.
With the added complexity of employees with time-limited permission to live and work in the UK, Mark recommends that follow-up checks are carried out through the course of the employment.
Regardless, he says that “records of all checks should be stored securely in compliance with data protection obligations. Most importantly, if an employer knows or has a reasonable cause to believe someone is an illegal worker, they should not be employed.”
Avoiding discrimination when conducting right to work checks
Some question the need to check everyone rather than just those individuals with different skin tones, accents or non-British sounding names. The reason for checking all, however, should be obvious, reckons Mark. It’s because “taking a limited approach to checking the right to work is very likely to be discriminatory and will not prevent unlawful working”. He thinks “appropriate checks should be conducted for all prospective employees regardless of nationality or race”.
The worry for employers who only ask certain individuals for proof of their right to work is that “employees who suffer discrimination during employment – or during the recruitment process – could bring claims seeking compensation as a result of the discriminatory treatment,” he observes.
Shabana doesn’t disagree: “Checks should be carried out on all employees, regardless of presumed race or nationality, and should be a part of the business’s standard on-boarding process,” she says. “The Home Office is clear that adopting any other approach could give rise to claims against employers of discrimination on the grounds of race or nationality.” In her mind, a good example would be if a British national of ethnic descent is asked to provide evidence of their right to work when their white British colleague is not; they could then argue they have received different treatment on the grounds of their race.
‘Checks should be carried out on all employees, regardless of presumed race or nationality, and should be a part of the business’s standard on-boarding process’
Bluntly put, she says that “if no right to work check is carried out, employers cannot guarantee that an individual who ‘looks’ like they are British or Irish actually holds the relevant status, and therefore cannot confirm whether or not they have the appropriate right to work in the UK without additional permissions”.
Stiff penalties for breaches: what are the penalties for non-compliance?
It goes without saying that while the majority comply with the law, there are harsh penalties for those who do not.
As Mark details, a civil penalty is levied when an employer employs someone without the right to work. He says that where a breach occurs, “the Secretary of State – in practice, an immigration officer – will issue a notice of liability to pay a civil penalty of a specific amount, the maximum being £20,000 for each individual who does not have the right to work”. Further criminal penalties – a prison sentence and/or an unlimited fine – can also apply when the employer knows or has reasonable cause to believe an individual is an illegal worker.
There is some help for employers, though: “If right to work checks are carried out correctly,” says Shabana, “then even if that business does mistakenly hire an illegal worker, a statutory defence may be available against civil penalties.”
Immigration officers visiting an employer have the power to request an inspection of documents for each employee, question individuals and talk to other employees
Immigration officers visiting an employer have the power to request an inspection of documents for each employee, question individuals and talk to other employees. “They also,” says Mark, “have the power to search the premises for documents – electronically too – and seize them if they deem it necessary.” On top of this, employers of illegal workers can also be named and shamed by immigration enforcement as a warning to others.
Can this affect my sponsor licence?
Beyond naming and shaming, Shabana warns that any sponsor licence an employer holds for migrant workers may be downgraded or revoked if they are found to be employing illegal workers. This “can have serious logistical ramifications if the employer is sponsoring workers – whether that is a large number of lower-skilled workers or a small number of highly or specialist skilled workers,” she says. “Where a licence is revoked the visas of those workers will be curtailed and they will be required to leave the UK if they aren’t eligible for another immigration permission.”
If an employer doesn’t yet hold a sponsor licence, a civil penalty will impact their ability to obtain one if the need arises.
What do I need to do for contractors and locums?
There is a twist to the story – the situation relating to contractors, including locums. Here, Mark explains that while the offence refers to individuals who are directly employed, “an immigration officer may not have the time or resources to identify if an ‘employee’ is actually a consultant, contractor or other individual working at the place of business. If these workers end up being removed, it could cause reputational damage to the business as well as disrupt the operations.”
The contract between the business and the agency should clearly state that the agency remains the employer and is responsible for conducting the necessary right to work checks
It’s for this reason the Home Office recommends the appropriate checks be carried out on all workers, whether employed directly or not. For agency staff, Mark recommends the contract between the business and the agency should clearly state that the agency remains the employer and is responsible for conducting the necessary right to work checks.
What does the future hold?
The government has been vocal about increasing enforcement around illegal working. We can therefore expect to see the law enforced more regularly and an increase in illegal working penalties.
Impact on the profession
But how does this impact the veterinary profession? Well, Nigel Gibbens, former CVO, revealed that “more than 90 percent of people working within the Food Standards Agency, more than 60 percent of the people working in the government and more than 25 percent of people working in general practice” are non-UK EU nationals or non-UK non-EU nationals (Rodwell, 2019).
Reports also highlight that “the BVA and RCVS […] realise that the general veterinary workforce is ‘highly reliant’ on EU vets. An analysis of the RCVS’s most recent statistics reveals just how reliant the workforce is on EU registrants (48 percent of new registrants in 2016/17 qualified from EU countries, compared with 44 percent from the UK and 8 percent from the rest of the world).”
