Right to Work and Illegal Working

18 September 2016
The rules about immigration status and the right to work in the UK are fairly complex and sometimes uneven. Those who hold Indefinite Leave to Remain have the right to work without any restriction. Most EU and EEA nationals also have such an unfettered right to work (for the moment anyway), as do their dependants, even if they are from outside the EEA.

UK visa holders may also have the right to work, in some cases (eg family visas) unrestricted and in other cases (eg Tier 1 Entrepreneur, Ankara Agreement businessperson) restricted to running a business and in yet other cases (eg Tier 2 skilled worker, Overseas Business Representative) restricted to working for specific organisations. Dependants of working visa holders also have the right to work and - rather counterintuitively - typically have broader rights to work than the main visa holder does. For example, a Tier 2 skilled worker visa holder can only work for the organisation for which their visa has been granted whereas their partner can work for any organisation.

A non-EEA migrant who does not hold a visa that enables them to work cannot work legally. So, obviously, illegal entrants have no right to work and, almost as obviously, neither do overstayers (ie those who have overstayed their visa period). This is something that can in some cases cause problems for those who are working legally but whose visa extensions have been refused and who eventually have to resort to Judicial Review to try to get the refusal decision overturned, and it can be an area of some legal difficulty. In other cases a migrant who has the right to work has applied to the Home Office for another visa but they have not yet received a decision. Such a migrant may have retained the right to work but might experience problems in immediately proving it.

Given the complexity of this scheme, the average employer might have difficulty in understanding who has the right to work and who does not, and especially as the relevant information written on a visa or biometric residence permit is sometimes very brief and sometimes the information provided online by the Home Office is not always very comprehensive.

The Home Office evidently devotes substantial resources to combatting illegal working and it regularly sends squads of officers to visit work premises; in many cases, it appears, following tip-offs from members of the public (“intelligence-led operations” as it is more formally known). The law provides for employers to be subject to civil penalties (fines that fall short of criminal sanctions) and also to criminal sanctions for illegally employing workers. In a really serious case an employer can be given a prison sentence.

Home Office figures show that in the three months up to March this year civil penalties of over £14m were imposed on employers, which looks quite a substantial figure (but the actual recovery rate may be only about 30%, which is not quite so substantial). But, in any event, the “punishment” does not always consist solely of the financial penalty; now the Home Office has a practice of “naming and shaming” employers who have been penalised for employing workers illegally and who do not pay up promptly (https://www.gov.uk/government/collections/employers-illegal-working-penalties#penalties).

This list enables one to search by geographical area and identify which employers have been penalised, to what extent, and exactly where they are. This might provide hours of fun for those who relish finding out who in their local area has been found to be on the wrong side of the law, and is no doubt embarrassing to the employers concerned and not necessarily good for business.

So it is advisable for employers to have at least a reasonable understanding of the issues surrounding illegal employment, and it is hardly necessary to say that it is very important that they do not employ anybody without being confident that they have the right to work in the UK.


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