UK companies found to be employing a worker who does not have permission to work in the UK face significant Home Office penalties.
Right to Work: What do employers have to do?
The law requires all companies to check and retain evidence of each employee’s legal right to work in the UK.
In our experience, companies generally recognise their duties under the Right To Work legislation and Prevention of Illegal Working, and typically operate with policies and processes to comply with those duties.
The problem companies encounter when trying to comply with the law is that UKVI frequently change the legislation. The guidelines are hard to interpret and very often changed without any announcements.
These are clearly onerous requirements on employers, and it becomes easy to see why the civil penalty regime is as lucrative as Home Office figures testify with fines of up to £20,000 per breach.
How we can help
DavidsonMorris specialises in supporting UK employers with their Right to Work compliance.
As a team of immigration lawyers and former Home Office employees, we provide the guidance and assurance to help you meet your duties on an ongoing basis through legal, analytical and information technology-assisted techniques.
We are also highly experienced in challenging allegations of Right to Work non-compliance and Home Office fines, and provide policy advice and support, to ensure your policies meet the frequent changes in Home Office rules.
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Your Questions Answered
What are an employer’s Right to Work duties?
The Immigration, Asylum and Nationality Act 2006 requires all companies to check and retain evidence of each employee’s legal right to work in the UK.
Section 8 provides that all companies must check and retain relevant documentation in a prescribed format that demonstrates that an employee has the legal right to work in the United Kingdom.
Section 22 determines that the checks must be made in a non-discriminatory manner. All employees must be checked regardless of nationality, length of service and role within the company.
What are Right to Work document checks?
Your HR processes and policies should be shaped around meeting the Home Office guidance of verying each employee’s right to work by obtaining, checking and recording relevant acceptable types of documentation.
At the pre-employment stage, you should be asking all potential new employees to bring along their original passport or identity document. If the recruit is a British citizen and does not have a passport, you must request to see the original birth certificate (long version) and P45, or other evidence of registration with HMRC.
Thereafter, a copy of the document must be retained for the duration of the employment.
You then have to determine whether an employee should be categorised as a List A employee or List B employee, as this will dictate the forms of ‘acceptable’ documentation that must be presented to you by the individual.
What is List A?
List A workers are employees who are one of the following:
- British citizens
- EEA nationals
- Persons holding Indefinite Leave to Remain/ enter
What is List B?
If an individual does not fall within any of the List A categories, and subject to immigration control, they are classed as a List B worker.
The requirement is for companies to further split their List B employees into Group 1 and Group 2.
An example of this is the case of an employee working for an organisation who is married to a British citizen and has a Dependant Spouse Visa valid for 2.5 years: that employee now has to be classified as List B Group 1.
But as soon as the worker has submitted their application for an extension, an employer is now legally required to re-classify the employee into List B Group 2 and must check as per the UKVI guidelines until their application has been approved. Once approved and the worker has their visa extension, the employer must put them back into List B Group 1.
An example of a List B Group 2 is a student who has submitted an application to the Home Office for an extension to their visa, the application is pending consideration and until it’s been approved, the company is legally obliged to classify the employee as List B Group 2 and conduct checks as per UKVI guidelines.
Right to Work record keeping
Employers will only be afforded a statutory defence in law against a civil penalty if they can prove that they have correctly signed off on the retained documents, and stored them securely.
Among the record keeping duties, you must also keep a copy of the Right to Work check for at least 2 years after an employee leaves.
Right to Work risks
For organisations, the Right to Work regime presents a number of risks:
- The Right to Work rules – and the resulting requirements place on employers – are subject to frequent change.
- List B workers with time-limited permission to work must be subject to repeat checks.
- Training all personnel – including non-HR – involved in recruiting and onboarding new recruits, such as line and site managers.
- What happens when an employee loses their Right to Work?
This all means that Right to Work compliance is an ongoing demand, and not something to look at every so often. The Home Office is looking for continued monitoring of HR processes and their consistent and competent implementation to ensure ongoing compliance.
Right to Work checks and international students
Foreign students are permitted to work in the UK whilst studying. During term times, students are allowed to work up to 20 hours per week (10 hours per week if studying on a short course of study) and there are no restrictions on the numbers during holiday periods.
If you currently employ or seek to recruit a student and they are on a Tier 4 Student Visa, in addition to completing the ID checks you must undertake the following:
- Prove to UKVI that you have systems in place to ensure any student workers do not exceed the hours they are permitted to work
- Request to see evidence of their term dates in the form of a letter from the university or college, prospectus or website
- Record the term time dates in your payroll or HR system
- Retain a copy of the evidence, i.e letter from the university or college, prospectus or website
You then need to categorise them as List B Group 1, and again as List B Group 2 when they submit an application to extend their student visa.
If you’re facing a civil penalty for breaching the Right to Work duties
From experience, the majority of cases where the Home Office has issued a fine for illegal employment, the employer has not intentionally employed somebody illegally. It’s often because the rules have changed, and the employer hasn’t accounted for this in their HR process.
If you’re facing a civil penalty, you will need to take action quickly as you have only a limited window in whcih to respond to the Home Office. You will need to decide if you want to challenge the fine, and on what grounds.
We provide a fixed-fee assessment at the preliminary penalty stage and if you have been served a civil penalty, enabling you to determine which option will result in minimal financial loss for your business.
Right to Work Articles
Managing the compliance risks associated with List B employees.
Employees with time-limited permission are required to produce items from UKVI’s ‘List B‘ to evidence identity and temporary employment authorisation.
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