All employers are under a legal duty to prevent illegal working within their businesses and must conduct certain right to work document checks before an individual actually commences employment. Provided they do so, employers are able to avoid paying a civil penalty. This is known as the “statutory defence”.
On 16 May 2014 changes came into force to strengthen and simplify the civil penalty scheme for employers. This includes changes to the document checks employers are required to make.
The changes are as follows:
1. The list of acceptable documents for right to work checks has been reduced
Travel documents, work permits and general Home Office letters have been removed from the lists. All documents which contain an expiry date must now be current (except those showing that the holder is a British citizen, a citizen of the UK and Colonies having the right of abode, a national of an European Economic Area (EEA) country or Switzerland or their family members with permanent residence).
2. The frequency of follow-up checks for people with time-limited right to work is no longer every 12 months
Instead, where a person presents a document which contains an expiry date, the follow-up check is required when their permission to be in the UK and do the work in question expires. When a Certificate of Application or an Application Registration Card is presented as evidence as right to work or the employee has no acceptable documents because they have an outstanding application to the Home Office or appeal against an immigration decision, the follow-up verification check is required 6 months after the date of the initial check.
3. Separate lists
The acceptable documents for right to work checks set out in List B provide a statutory excuse for a limited period of time. This list has been separated into Group 1 and Group 2 to clearly distinguish the frequency of repeat checks required depending on the document presented. List B – Group 1 contains the documents for which a repeat check is required when the employee’s permission to be in the UK and do the work in question expires. List B – Group 2 contains those documents for which checks are required after 6 months with the Home Office Employer Checking Service.
4. Extension of time to establish statutory excuse
There is an extension of the statutory excuse for a maximum of 28 days beyond the expiry date of permission to work where the employer is reasonably satisfied that an employee has submitted an application to the Home Office or has an appeal pending against a decision on an application. During this period, an employer must contact the Home Office’s Employer Checking Service to verify that the employee continues to have the right to do the work in question whilst their application or appeal is being determined.
5. Changes to right to work checks following a TUPE transfer
There is an extension of the grace period to 60 days for conducting right to work checks on people acquired as a result of a TUPE transfer. This is an increase from 28 days.
6. Additional records required
A record of the date on which a check was made must now be retained. It is no longer necessary to copy the front page of the passport to establish and retain a statutory excuse.
7. International students must provide evidence of their studies
International students who have a limited right to work are required to provide their employer with evidence of their academic term and vacation times for the duration of their studies in the UK while they work, in order for an employer to establish and retain a statutory excuse.
8. Changes to civil penalties
A partial right to work check is no longer a mitigating factor in the calculation of a civil penalty.
The costs of getting this wrong are significant. The recently introduced Immigration Act 2014 increased the maximum civil penalty for employing a worker who does not have the right to work in the UK from £10,000 to £20,000 for every illegal worker employed. In the event of incurring a civil penalty, employers also face the cost to their reputation of the business being publicly “named and shamed” by the Home Office. Worse, if an employer knowingly employs an individual illegally, the directors or managers may find themselves facing criminal conviction, a fine or even jail.
What should you do?
- Whilst it is common for employers to ask new recruits to bring their passport or other right-to-work documents with them on their first day of work, this is not enough to establish a statutory excuse and so avoid a civil penalty. Evidence must be obtained before the employee’s start date. It is also a good idea to specify that the offer of an employment contract is conditional on the employee having the right to work and being able to provide proof.
- Request original documents proving eligibility to work in the UK. The documents required will depend on the individual, whether they are subject to UK immigration controls and what level of permission they have to work in the UK. Besides British citizens, nationals of the European Economic Area and those with indefinite leave to remain in the UK may work freely.
- Home Office guidance sets out the documents you need to see. These include a valid and current passport, birth certificate, and travel documents such as a biometric residence permit. Ensure that your “checking staff” are aware of documents that are not acceptable, for example, National Insurance number cards, driving licences, utility bills.
- Request “right to work” documents from all individuals. Do not target specific groups of employees, because, for example, they have foreign sounding names or accents, as this is potentially discriminatory.
- Check the validity of the original documents and take time to satisfy yourself that each one is genuine. You are not expected to be able to detect a false document unless it is reasonably apparent that the document is a fake but, you should check the photographs and the expiry dates of any UK visas. Where an individual is on a visa with limited leave to remain, ensure that you have a reliable diary system to warn when a visa is due to expire, and to repeat document checks as required.
- Retain copies of the original documents and record the date. Copies of the original documents should be kept on the individual’s personnel file for at least two years after employment ends, in manual or electronic format so they can be easily retrievable for inspection by a Home Office official if needed. In cases of doubt, consult the guides published by the Home Office to assist employers: “An employer’s guide to the administration of the civil penalty scheme” and “An employer’s guide to right to work checks” which will be referred to by Home office officials when administering the civil penalty scheme.
- Omer Simjee