Employers have had a responsibility to check the entitlement to work in the United Kingdom of all new employees since 27 January 1997, in order to establish a defence against conviction for employing an illegal migrant worker. On 1 May 2004 the law was strengthened by tightening the list of documents that employers are advised to check to avoid employing an illegal worker; the summary offence of employing an illegal migrant worker was also made triable either way, which means that there is now no upper limit to the level of fine that can be imposed on employers if convicted on indictment. In early 2008 the law on preventing illegal migrant working will undergo further changes.

Checking entitlement to work in the United Kingdom

The checks that employers should make, or have made to ensure that their employees are, or were entitled to work in the United Kingdom therefore depend on the initial employment date of each individual. These pages provide details of the appropriate checks for employees according to the date they are, or were recruited.

Avoiding racial discrimination

The prevention of illegal working can often raise race discrimination issues. When carrying out checks on their employees, employers must be careful not to use discriminatory recruitment practices. These pages provide details of how employers can avoid unlawful discrimination in their recruitment practices while seeking to prevent illegal working.

Checks for staff employed from 29 February 2008 - new measures to prevent illegal working

New measures to help tackle illegal migrant working will come into force on 29 February 2008. These measures, contained in the Immigration, Asylum and Nationality Act 2006, include:

• a system of civil penalties for employers who employ illegal migrant workers - it is proposed that the maximum civil penalty per illegal worker will be £10,000.
• a new criminal offence for employers who knowingly employ illegal migrant workers - this offence will carry a maximum two year prison sentence and/or an unlimited fine; and,
• a continuing responsibility for employers of migrant workers with a time-limited immigration status to check their ongoing entitlement to work in the United Kingdom.

The new measures do not significantly alter employers' responsibilities. Employers are already required to check their prospective employees' right to work in the United Kingdom, to establish a defence against conviction for employing illegal migrant workers.

The current law provides employers with a statutory defence from conviction if they check and record certain specified documents belonging to potential employees. Under the new measures, employers will similarly be able to obtain a statutory excuse from payment of a civil penalty by checking their prospective employees' documents. In addition, employers will be required to undertake repeat document checks at least once a year for those employees who have limited leave to enter or remain in the United Kingdom, if they wish to retain the statutory excuse.

As is currently the case, the excuse will not apply where an employer knows that they are employing an illegal migrant worker.