In this episode of The Inside Track, partner Grace Shie and counsel James Perrott break down the United Kingdom’s right to work regime by which employers verify the work authorization or immigration permission of their workforce. Grace and James review the core verification routes, civil penalty and criminal offence framework, and available statutory defenses. They share best practices for navigating heightened enforcement—addressing sponsor license exposure, reputational risk, and what to do when instances of “illegal working” are identified. Finally, they assess the UK Government’s potential extension of checks to contractors and gig economy workers, signaling the likely updates many employers will need to make to their workforce compliance programs.

Grace Shie: Welcome to The Inside Track. My name is Grace Shie and I lead Mayer Brown's Global Mobility Practice from Washington, DC. Today I'm joined by my colleague, James Perrott, who leads our UK immigration and European mobility practice.

Grace Shie: Hi, James. So we've had a few episodes that have focused on immigration enforcement, including workforce employment verification. The U.S. has quite a prescriptive system under the I-9 rules, and we are not alone in imposing these types of employee workforce verification requirements. So for today's episode, I've asked James to speak to us on immigration compliance in the UK, particularly the employment verification checks that employers are required to undertake in order to obtain a defense against liability for employing an illegal worker. So with that, James, why don't you start with the current state of the law on the prevention of illegal working in the UK.

James Perrott: Thanks, Grace. So in the UK, it's an offense to employ someone who does not have the appropriate immigration permission to undertake their role in the UK. It's a strict liability offence and employers who are found to be employing an illegal worker can be subject to a civil penalty of up to £60,000 per illegal worker. There is also a criminal offence, so if the employer knew or had reasonable cause to believe that a person does not have the right to work in the UK, a faculty of this event can be liable to imprisonment for up to five years and an unlimited fine.

Grace Shie: So that leads to the next question. What does an employer do? What can an employer do in order to avoid liability in those situations?

James Perrott: So an employer can establish what is called a statutory defense against liability for a civil penalty by undertaking a valid right to work check. And this must happen before a potential employee starts work. And there are essentially two types of check depending on the nationality of the employee. So for those who have temporary UK immigration permission or long-term UK immigration permission, the employer must undertake an online check. And once you've undertaken the check, make a note of when the person's immigration permission expires so that they know when to undertake a follow-up check.

Grace Shie: And just to clarify, when you say a check, we mean checking to that. individual has documents evidencing the right to work, the authorization to work in the United Kingdom.

James Perrott: Exactly. So they check to make sure that they have certain, have an immigration permission, which allows them to undertake their job. It's an online check. So the employer goes on to a home office website and can find the details of the individual and their permission to work in the UK. For British and Irish citizens, the situation is slightly different in that at the moment, employers can only undertake a manual right to work check. That actually involves seeing the physical document, which would obviously normally be their passport, taking a copy of that and keeping a copy of that on file. It's important to note that the online and the manual check must be done by an employee of the company. It cannot be outsourced. The only exception is that in the case of British and Irish citizens, where an employer may use what is called a digital verification service to verify someone's right to work. However, if the digital verification service undertakes to check incorrectly, the employee would still be liable for the civil penalty. It's really important that companies should do a full check of the digital verification service provider to make sure they're comfortable that they're doing the check properly. Evidence that the right to work check has been undertaken must be held throughout the individual's employment and for two years after the end of that employment.

Grace Shie: That sounds fairly similar to the US system. In the US system, employees are required to complete Form I-9, so there's a specific form to be completed, but it's the same form for all employees irrespective of their status. It's interesting that in the UK, there's different treatment based on these two groups that you've identified. What happens if a worker is unable to provide information to their employer to evidence their right to work?

James Perrott: So this normally happens in the case of individuals who have temporary immigration permission to work in the UK. And it happens when a migrant has submitted a valid application in countries before their immigration permission has expired, but actually that application is still under consideration and their immigration permission has expired. Now in the UK, provided you submit that valid application before your immigration permission expires, you're allowed to remain in the UK and your immigration permission is treated as continuing until the immigration application is, or decision is made on it when it's hopefully approved. So therefore, if you have the right to work in the UK under your immigration permission, you will continue to have that right to work until the decision is made. But obviously, any check the employer does will show that that immigration permission has expired. So in that situation, the employer needs to contact the Home Office's employer checking service, provide the individual's details, and then that the employer checking service will give the employer what is called a positive verification notice, which will confirm the individual has a valid application submitted and they have the right to work. And the employer just needs to keep a copy of that notice and make a note of the expiry date, which is six months after the issue of the notice. And then within that six month period, either hopefully the individual's application is approved, and then the employer does a full right to work check on the basis of that new permission. Or if it's still not being completed, then the employer needs to do another employer check and service request.