The Home Office’s tough, low-tolerance stance toward illegal working contuses to push immigration compliance high up the business risk agenda.
UKVI has extensive powers to investigate and enforce illegal employment issues across all sectors and types of organisation. Civil penalties also provide a welcome income stream for the Home Office.
UK employers should be under no illusion – there is no option than to ensure you are doing all you can to meet your duties to prevent illegal working.
As a quick temperature check, consider if any of the following statements apply to your organisation and its approach to immigration compliance.
“Our last immigration audit was over 2 years ago.”
Under the prevention of illegal working regulations, it is a legal requirement that every UK employer has adequate HR systems and processes in place to perform compliance right to work document checks on all employees, and that appropriate evidence is retained of each employees’ right to work.
While your organisation may have a right to work process in place, such as photocopying ID for new starters, there are a number questions to ask to ensure continued compliance with your duties:
- Do you know if right to work documents and records are up to date?
- Since different types of document are required by different individuals, are you certain the correct documentation being recorded?
- Is your organisation prepared for changes in Right to Work checks from 1 July 2021?
- Are your illegal working processes effective and being implemented correctly and consistently – particularly if your organisation has multiple sites, with decentralised recruitment and onboarding?
An immigration audit is highly effective in ensuring your organisation is operating in accordance with its duties. You can identify issues and breaches before they can be picked up by the Home Office.
Areas to evaluate should include:
- Right to work document checking systems and processes – ‘Obtain, Check, Record’!
- Avoiding risk of discrimination while complying with duties.
- Systems addressing immigration requirements such as permitted working hours for students on Tier 4 visas.
- Systems addressing sponsorship requirements such as minimum skill levels, minimum salary levels and use of Resident Labour Market Test.
- Systems addressing a sponsor’s duty to report to the Home Office events relating to the sponsored migrants’ employment and circumstances and on certain changes to the organisation itself.
If your organisation has not undertaken any form of review or evaluation of immigration compliance processes and systems in the past 2 years, there is a substantial risk that weaknesses and gaps have developed.
For example, in the past 12 months alone there have been extensive changes to the UK immigration rules; have these been accounted for by your organisation?
It is also worth remembering that UKVI have powers to inspect during unannounced site inspections. Your HR records must be up to date and compliant at any one time.
The Home Office is looking for evidence that, as an employer, you are taking your duty to prevent illegal working seriously. You want to be able to demonstrate a concerted and ongoing commitment to meeting your duties. An up-to-date audit will be favourable when presenting your organisation’s approach to immigration compliance.
“We don’t have a proper handle on business travel activity.”
With governments across the globe taking more stringent approaches to business travel for public health reasons and to protect their domestic labour markets, there is no room for error for business travellers seeking to gain entry, however short the visit.
Travelling employees need support that goes beyond obtaining the correct international visa. There are many compliance risks associated with employees who are regularly travelling overseas for short-stay business trips.
But the reality is that it is notoriously difficult for multinationals to keep abreast of all business travel. A logistical nightmare, yes. But overlook this cohort at your peril.
Issues at the border, employees detained or stranded without necessary documentation or information and unable to meet the purpose of their visit. These scenarios can all be avoided.
You should provide business travellers with all the information they need to safeguard against business travel risks. This should include:
- Foreign travel advice and country-specific risks
- Information on local laws, customs, culture and etiquette
- Procedures to follow in the event of an emergency – contact numbers etc
- Pre-travel checklists – electronic copy of passport, adequate travel insurance, evidence of accommodation, departure details at hand etc
- Briefings on health risks and requirements for medical assessments, vaccintations, medical insurance etc
Managing the risks of travelling employees delivers benefits beyond immigration compliance.
You will also be able to ensure your employees are safe, and that they are able to make the best of the commercial purpose of the visit.
“We don’t really have a process for List B documents.”
Do you have a system in place to effectively manage this high-risk area of compliance?
Employees with time-limited permission to work in the UK are required to produce items from UKVIs List B to evidence their identity and temporary employment authorisation.
‘List B Group 1’ documents apply where a person has limited leave to remain or enter the UK, restricting the duration or type of activity permitted.
Original copies of the documents or combination of documents in List B show that a person is allowed to work in the UK for a limited period of time, for example, a biometric resident permit, passport or work permit.
Obtain, check and record this documentation to provide you as an employer with a statutory excuse against a civil penalty for up to 12 months from the date on which you carry out the checks.
You are then required to carry out additional checks at least every 12 months on employees relying on List B documentation.
Where an individual’s leave expires during the period of 12 months, you should carry out a check at the point of expiry to verify their continued Right to Work.
You may at this point be presented with a ‘List A’ document, in which case, you have met your duty for the duration of the person’s employment with you. You are no longer required to carry out annual checks on that employee.
Should you be presented with items from List B, the 12-month cycle starts again.
At the point of check, you may be presented with documents from ‘List B Group 2’, or the individual may be unable to present any acceptable document from List 2, because:
- the individual’s visa is due to expire; or
- the individual is appealing to extend their stay; or
- an individual is awaiting an application decision by the Home Office.
In these circumstances you are required to contact the Employer Checking Service to receive a Positive Verifiation Notice from the Home Office, confirming the continued eligibility of the individual to work for the duration that their application is outstanding and until their visa is approved.
List B management is a complex area to navigate, requiring a systematic approach to right to work checks to avoid any potential wrong-doing on your part – however unintentional. Effective approaches include automation and clarity of roles and responsibilities (yours and your employees) in informing of immigration status. Fail to meet your duty, and you may find yourself liable for a civil penalty.
Effective immigration compliance is an ongoing requirement, part of an organisation’s everyday operations, systems and processes.
DavidsonMorris’ business immigration lawyers are experienced advisers to employers on all aspects of immigration compliance and civil penalties for illegal working. If you have any queries about your immigration duties, or challenging a civil penalty for illegal employment, please contact us.
Last updated: 18 November 2020