Businesses who employ staff in the UK ought to carry out compliant right to work checks to establish a “statutory excuse” under the Immigration, Asylum and Nationality Act 2006 (the “2006 Act”). If you are suspected of employing workers who don’t have a right to work, and you do not have a statutory excuse, you may be liable for a civil penalty of up to £20,000 per illegal worker and could potentially face criminal sanctions as well. We give a brief overview on conventional manual checks, the new online digital checks, and general information surrounding right to work checks.
The current “civil penalty” system, under the 2006 Act and the Immigration (Restrictions on Employment) Order 2007 (the “2007 Order), has been in force since 29 February 2008 with various changes made over the years.
Broadly speaking, a statutory excuse can be established where you perform the following 3-step process:
- obtain the original document (e.g. see Home Office checklist);
- check that the original document is (and the details are) valid and not obviously fraudulent in the presence of the person and their photo match; and
- retain a clear copy of the document and record the date the check was made.
From 28 January 2019, it is possible for UK employers to use the Home Office online right to work checking service to establish a statutory excuse instead of following the manual process. This change is legislated for through the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018 which amends the 2007 Order.
In general terms, a statutory excuse will be established where:
- the online checking service confirms the named employee is permitted to work in the UK and can do the work in question;
- you have satisfied yourself that any photo on the online checking service matches the employee; and
- you retain a clear copy of the online right to work check.
The online checking service will be of particular use to employers in the coming months as more EU nationals will begin to apply for “Pre-settled” and “Settled” status under the EU Settlement Scheme, which will be fully rolled out by March 2019. The online checking service will also be useful for non-EEA nationals who have a Biometric Residence Permit or a Biometric Residence Card. Employees will need to provide you with their “share code” for you to check their right to work online. Where it is not possible to rely on the online checking service, employers will still be able to rely on manual checks to establish a statutory excuse.
Employers and HR staff should always be alert to potential claims of discrimination, and in particular, when carrying out right to work checks, these should be conducted on all employees before employment commences to establish a statutory excuse, including those who are understood to be British citizens, rather than “targeting” certain individuals. Businesses will usually have policies and procedures which allow these checks to be carried out.
Where you have already conducted a right to work check, depending on whether the document is found in “List A” or “List B”, it may be necessary to carry out new follow up checks at a later date, to ensure that your employee has a continued right to work. “List A” documents provide a continuous statutory excuse for the duration of that individual’s employment with you such as a passport showing the holder is a British citizen, so further checks aren’t necessary. “List B” documents will only establish a time-limited statutory excuse which will expire. For instance: where you have used the Employer Checking Service, a Positive Verification Notice (and therefore a statutory excuse) is usually only valid for 6 months or less; or where the employee has a ‘temporary’ visa such as a Tier 4 (General) student visa or a spouse visa, the statutory excuse will end when that visa expires. Where businesses do employ migrant students with a right to work, additional documents need to be obtained. It is therefore important to diarise follow up checks where necessary (usually at least once a year or more frequently) as well as reviewing procedures and policies to ensure the correct steps are being carried out.
If your organisation sponsors an employee to work for you in the UK, under a Tier 2 or Tier 5 sponsor licence, you are required to carry out right to work checks as part of your sponsor duties and failure to do so may come to light when the Home Office carry out an audit/ compliance check, which may result in additional sanctions of varying degrees including in serious cases the possibility of your organisation’s sponsor licence being revoked.
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