Right To Work In The UK

Preventing Illegal Working, Guidance For Owners Of SMEs

Under the Immigration and Asylum Act it is a criminal offence to employ someone who is 16 or over and not entitled to work in the UK. It is therefore vitally important to check that every employee has the Right To Work In The UK.

UPDATE 12 JANUARY 2026
The illegal working regime is expected to be extended to non-employee workers and self-employed contractors during the course of 2026, under provisions of the Border Security, Asylum and Immigration Act 2025.

Implications/Action Points

• Extending right to work checks will increase HR workloads and require careful monitoring to ensure compliance.
• Employers will need to audit staff to identify those who may be affected.
• Fines start at £45,000 for a first offence, so it is important that businesses carry out proper checks on all staff.

What to Check

Documents can be checked online or the applicant can provide original documents for you to check. More information about acceptable documents can be found here: https://www.gov.uk/check-job-applicant-right-to-work

It is not acceptable simply take a copy of the documents presented. You must also check that the potential employee is the rightful holder of the documents presented. This can be achieved by checking that:-

• The photograph is actually of the individual
• The date of birth is consistent with the applicant’s appearance
• The information contained within the document corresponds with that contained within the application
• The expiry date has not passed
• Any UK Government stamps or endorsements permit the individual to perform the type of work on offer
• If the two documents in List 2 bear different name, a further document is produced that explains the discrepancy

The relevant parts of the documents should be photocopied or scanned and retained on the employee’s personal file whilst they are employed by you and for at least six months after they leave the company.

When to Check

You must ensure that you have sufficient evidence to support your right of defence if the Immigration Office finds that an illegal immigrant has been engaged. Therefore, all checks must be carried out prior to an individual starting employment. It is up to the individual to prove that they are eligible to work in the UK – if you are not satisfied with the documents presented do not employ the individual until such time that they can provide satisfactory documents.

You can ask applicants to provide proof of entitlement to work in the UK at any stage before they start work.

So you can do it at the interview stage, but if you are filling a number of positions then that a lot of unnecessary checking. If it is more convenient you are perfectly entitled to ask only the person chosen to fill the vacancy to provide their documentation.

Pre Employment Checks
Recruiting the wrong employee can be expensive for any business, but for SMEs the impact is often far greater. A poor hiring decision can affect productivity, customer relationships, team morale and management time almost immediately. In smaller businesses, where teams are lean and resources are stretched, one unsuitable hire can create disruption across the entire organisation. Many recruitment problems begin long before performance issues appear. Rushed hiring decisions, informal recruitment processes and inconsistent pre employment checks can leave SMEs exposed to avoidable legal, financial and operational risk.

Read More About Pre Employment Checks In The UK

Avoid Discrimination Claims
If you choose to request documents at an earlier stage of the recruitment process, such as at the first or second interview stage, make sure that you ask all applicants who reach that stage so you do not risk being accused of race discrimination. If you asked a black job applicant to produce appropriate documents but not a white applicant you would be discriminating against the black applicant on the grounds of his race. Remember, there is no upper limit to compensation awards for racial discrimination.

Illegal Working Civil Penalty Fines

If you recruit an overseas worker who does not have the Right To Work In The UK you could face a fine of up to £20,000 per illegal worker. The fines are increasing in early 2024 to up to £60,000 per employee.

Read more about: Illegal Working Civil Penalty Fines

Top Tips

If an applicant’s documents are incomplete, it is perfectly acceptable to continue with the selection process as planned. Simply ensure that if you offer that applicant the job you have checked the correct documents before they start work. I would suggest giving them a deadline to provide the documents and make it clear if they do not comply you will offer the position to another applicant.

How KEA HR Supports SMEs

Many SME owners simply do not have the time to manage recruitment checks consistently while also running the business.

KEA HR supports SMEs with practical recruitment and HR processes designed to reduce risk and improve consistency.

Support can include:

• recruitment process reviews,
• right-to-work guidance,
• pre-employment checking procedures,
• probation management support,
• recruitment documentation,
• manager guidance, and
• wider HR compliance support.

The aim is not to create unnecessary bureaucracy, but to help SMEs recruit with greater confidence while reducing avoidable operational and legal risk.

Need Support Reviewing Your Recruitment Process?

If your business currently recruits informally or relies heavily on rushed hiring decisions, now may be the right time to review whether your recruitment processes are adequately protecting the business.

Small recruitment mistakes can become expensive problems later. Putting clear recruitment and probation processes in place early is usually far easier, and significantly less costly, than dealing with the consequences after issues arise.

Have a question about right to work checks or other pre-employment checks? Speak directly with our CIPD-qualified HR expert with 30+ years’ experience.

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