To avoid civil penalties and the possibility of criminal prosecution, employers must scrutinise the working documents produced by their employees and in certain circumstances contact the Home Office for a Positive Verification Notice.
When hiring any new employee, organisations must follow the ‘prescribed requirements’ in order to obtain the ‘statutory excuse’ and so avoid a civil penalty for illegal employment.
These prescribed requirements essentially require an employer to check documents and verify an employee’s working status prior to offering them employment.
Where relevant, employers must conduct follow-up checks to ensure that their employee’s status remains valid.
While this sounds simple in theory, the task may become problematic where an employee is unable to produce a document that unequivocally demonstrates a right to work in the UK.
The Prescribed Documents
The Immigration (Restrictions on Employment) Order 2007 sets out the prescribed documents that an employer may accept to avail itself of the statutory excuse and avoid civil penalty.
A document from List A of the Order will demonstrate that the holder has an indefinite right to work in the UK without restriction.
If an employee produces a document from List A, including a British passport or Permanent Residence Card issued to an EEA national, the statutory excuse will apply for the duration of employment.
List B contains documents that demonstrate the holder has a time-limited right to work in the UK.
If an employee produces a document from List B, an employer must conduct follow-up checks when the right to work displayed in the document has expired.
Positive Verification Notices
In exceptional circumstances, an employer is required to obtain a Positive Verification Notice from the Home Office for the statutory excuse to apply.
An employer is required to contact the Home Office and verify that a person had the right to work in the UK, if the employee is only able to produce:
- a Certificate of Application, less than six months old, indicating that the holder is permitted to undertake the work in question;
- an Application Registration Card, indicating that the holder is permitted to undertake the work in question; or
- no acceptable documents can be produced because the person has an outstanding application with the Home Office or appeal/administrative review against the Home Office.
Where this verification is required, the Home Office’s Employer Checking Service (ECS) can be contacted via their website.
Within five working days, the ECS will respond with either a Positive or Negative Verification Notice.
A Positive Verification Notice confirms that an employee presently has the right to work in the UK. An employer can rely on this document to establish the statutory excuse for the period the Notice is valid.
A Negative Verification Notice confirms that an employee does not have the right to work in the UK.
Any employer that continues to employ a person after receiving a Negative Verification Notice will be liable to civil and criminal penalties.
Pending applications, appeals or administrative reviews
Where an employee has an application, appeal or administrative review pending, their continued right to work will depend on whether they have commenced that process within the prescribed time period.
If a person makes an application to extend or vary their leave to stay in the UK before their current leave expires, any existing right to work will continue until the application is determined. The Home Office will provide a Positive Verification Notice in these circumstances.
Appeals and administrative reviews must typically be made within 14 days of the original decision. If made within that time, any existing permission to work continues during the review period.
Administrative reviews may be heard outside of this time period if the Home Office considers it would be unjust not to do so. Where this occurs, leave to work will continue from the date the administrative review is accepted.
If at any stage an employee can present a document from List A or List B: Group 1, verifying that their application, appeal or administrative review has been determined favourably, then the statutory excuse will be established by checking these documents in the usual way.
Only a prescribed document or a further Positive Verification Notice will establish the statutory excuse. A letter from a solicitor indicating that an appeal or administrative review has been successful is insufficient.
Validity of Positive Verification Notices
In the first instance, where an employee provides an employer with a document that requires a Positive Verification Notice, there is a 28-day grace period where the statutory excuse will continue while the employer contacts the Home Office.
This grace period does not apply to prospective employees that have not yet commenced employment.
In these circumstances, the employment should be delayed until a Positive Verification Notice is received.
If a Positive Verification Notice is received, the employer will be able to rely on the Notice to support the statutory excuse for six months from the date of receipt.
However, as is always the case, if at any time an employer becomes aware that the employee actually does not have the right to work (if, for example, an employee has had their application or review rejected), then the statutory excuse will no longer be valid.
Employers may also face criminal prosecution where they should reasonably have been aware that the employee did not have the right to work.
We have substantial experience advising employers on avoiding and appealing civil penalties. If you have any queries about civil penalties or the working status of your employees, please contact one of our team.