Under the Asylum and Immigration Act 1996 it is unlawful to employ someone who has not been granted leave to enter or remain in the UK or whose leave is not valid and subsisting, or is subject to conditions precluding them from taking the employment. An employer who is in breach will be liable to a conviction and a fine.

Nationals of any country that is a member of the European Union or the European Economic Area are generally free to take employment in the UK. Nationals of the recent accession countries must either register with the Home Office under the Worker Registration Scheme (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia)  or get authorisation from the Home Office before starting work in the UK (Romania and Bulgaria).

There is a statutory defence for employers to a breach of section 8 of the Asylum and Immigration Act 1996. If the employer has checked that the individual has certain documents before the employment has begun, the employer will not be liable. An employer must keep a copy of the front page of the document in question, together with any pages containing personal details and any pages containing a UK Government stamp or endorsement.

An employer cannot rely on the statutory defence if he knows that the individual is not entitled to work in the UK, even if he has carried out the relevant check.

The documents necessary for a section 8 defence fall into two categories. Either one or other category must be satisfied. The first category requires only one of the following documents:

• A passport showing that the person is a British or UK citizen (or a citizen of the colonies with a right of abode in the UK)
• A passport containing a certificate that the person has the right of abode in the UK
• A passport or national identity card from a member of the EEA or Switzerland
• A UK residence permit issued to a national of a member of the EEA or Switzerland
• A document issued by the Home Office showing that the individual has a right of residence in the UK (as a family member of national or member of the EEA or Switzerland)
• A document stating that the person is exempt from immigration control, can stay indefinitely in the UK or has no time limit on their stay
• A document stating that the person can enter or remain in the UK and can do the type of work being offered without a work permit
• A Registration Card issued by the Home Office to an asylum seeker stating that they can take employment.

The second category requires a combination of the following documents:

• A document issued by a previous employer, HM Revenue and Customs (or a number of other named employment agencies) together with one of the following:
       - A UK birth certificate showing the  
         names of the person’s parents
       - A birth certificate issued in the Channel  
         Islands, Isle of Man or Ireland
       - A certificate of registration or 
         nationalisation as a British citizen
       - A Home Office letter or an Immigration 
         Status Document issued by the Home 
         Office endorsed with a UK residence 
         (indicating indefinite leave to enter or 
         remain in the UK)
       - A Home Office letter indicating that the 
         person has subsisting leave to enter or 
         remain in the UK and can take up the 
         type of job in question
       - A Home Office Immigration Status 
         Document endorsed with a UK  
         residence permit indicating that the 
         person has limited leave to enter or 
         remain in the UK and can take the type 
         of job in question
• A work permit or other approval to take employment issued by Work Permits UK together with one of the following:
       - A passport or other travel document 
         showing that the person has current 
         leave to enter or remain in the UK and 
         can take up the job in question
       - A letter issued by the Home Office 
         confirming the same.

In order to avoid claims of discrimination, employers should carry out checks on all job applicants. The Home Office has issued a Code of Practice on avoiding race discrimination in recruitment in order to assist employers.

This article is for the purpose of general awareness only and the law may have changed since it was originally published.  It does not constitute legal or professional advice and readers should not act on the basis of the information included.  Readers should take appropriate advice upon their own particular circumstances.

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