The Asylum and Immigration Act 1996 outlines the conditions and restrictions placed on employers regarding asylum seekers and refugees seeking work in the UK.
This legislation was further clarified and amended in the Immigration, Asylum and Nationality Act 2006 and the Immigration Act 2016.
Asylum and Immigration Act 1996 & Employing asylum seekers
The definition of an asylum seeker is an individual who has applied for asylum, that is, protection from persecution in their home country. They seek the status of refugee.
Generally, an asylum seeker in the UK does not have the right to work, unless they have been given permission by the Home Office.
There are very few situations where this permission will be given, for instance, where an asylum seeker already has some other form of permission to work in the UK such as a temporary work visa. This prior permission to work in the UK will be shown in their passport or on their biometric residence permit.
Where an asylum seeker’s application for protection has taken more than 1 year to process, they may apply for permission to work, but any such permission is at the discretion of the Home Office and informed by the asylum seeker’s individual situation.
Where an asylum seeker has been given permission to work in the UK, this will be stated on their Application Registration Card (ARC). The purpose of an ARC is to verify the asylum seeker’s identity, allow them access to services in the UK and demonstrate to employers whether or not they may work in the UK.
Where an asylum seeker has been given permission to work in the UK, their ARC will state one of the following:
- Allowed to Work
- Employment Permitted
- Work Restricted (followed by either SOL – Shortage Occupation List, Student or Other)
Where an ARC states Employment Prohibited or Forbidden From Taking Employment, the asylum seeker has not been given permission to work in the UK.
It is illegal to employ asylum seekers who do not have permission to work in the UK.
Asylum and Immigration Act 1996: Employing refugees
Once an asylum seeker’s application for protection has been successful, they are granted the status of refugee. They may live and work in the UK for 5 years on the basis of limited leave to enter or remain. After that a refugee may apply to settle in the UK which grants indefinite leave to remain.
A refugee has the right to work in the UK, but their right to work must be checked in exactly the same way as any worker applying for employment in this country.
Unless a refugee applies for settlement in the UK, they are only permitted to work in this country for the initial 5-year period.
All refugees are issued with a Biometric Residence permit (BRP) which shows a photograph of the refugee, their name, date and place of birth, the dates it is valid from and until, and their permission to work in the UK.
Asylum and Immigration Act 1996: Right to Work Checks
All employers are required by law to carry out right to work checks to safeguard against the employment of illegal workers.
An employer should check that a refugee has the right to work before they begin employment. It is not acceptable to employ a person, and then check whether they have the right to work.
When checking that a refugee has the right to work in the UK, they must provide their actual Biometric Residence Permit. A copy of the BRP is not sufficient for this purpose.
Check that the refugee is the person identified on the BRP. Is the photograph on the BRP a good likeness? Does the place and date of birth match with information they have given or what is displayed on other documents that they have provided?
Check the expiry date on the BRP to ensure that a refugee is not employed beyond their period of right to work.
Finally, check that the employment they seek fits with the type of work their BRP states they may carry out.
In addition to carrying out the above checks, employers are also legally required to keep a dated record of any checks they have carried out, including taking a complete copy of all documents.
It is the employer’s responsibility to check and re-check their employees’ right to work in the UK.
What happens if a refugee’s BRP expires?
This will depend on whether the refugee has applied to settle in the UK, has applied for further leave to remain, or no longer has the status of refugee.
Applied to settle in the UK
When a refugee settles in the UK, they are granted indefinite leave to remain, including the right to work. Ideally, the refugee should apply for settlement at least 1 month before their refugee status, and the 5-year period of limited right to remain, expires.
While their application for settlement is processed, it is the responsibility of the employer to check that the employee still has the right to work for them. Although the worker will be issued with a letter acknowledging that their application for settlement has been received, the employer must use the Employee Checking Service (ECS) to check that the worker still has the right to work in the interim. Any employer who does not check on their worker’s right to work may face a civil penalty.
Applied for further leave to remain
Should a refugee wish to extend their initial 5-year period instead of applying to settle in the UK, they should apply for further leave to remain before the 5 years ends.
While their application for further leave to remain is being processed, the refugee retains the right to work. However, it is the employer’s responsibility in this situation to use the ECS to check on the worker’s right to work. For a current employee, the employer must contact the ECS up to 28 days after the application has been made. For a prospective worker, the employer must contact the ECS within 28 days of the worker applying to them for employment.
No longer hold the status of refugee
Where a refugee reaches the end of their 5-year period of limited right to remain and does not apply for settlement in the UK or further leave to remain, they lose the status of refugee, the right to remain and the right to work in this country.
They may not be employed and where they are already employed, that employment must come to an end.
Employee Checking Service
The Employee Checking Service (ECS) is used to check the immigration status of a worker, however it is necessary to receive permission from the worker before using the ECS.
The ECS can be especially useful where a refugee has the right to work but cannot produce their BRP, or where an asylum seeker has an ARC which states they can work but the employer wishes to confirm this.
To check a worker’s immigration status through the ECS, the following information is required:
- the worker’s full name
- date of birth
- nationality
- the intended job title
- weekly hours to be worked
- the worker’s home address
- the business name, type and contact details
Penalty for non-compliance
Should an employer fail to carry out the required checks or do so incorrectly or ineffectively, and subsequently employ an illegal worker, they may be issued with a civil penalty of up to £20,000 per illegal worker employed and possibly face imprisonment.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.
