Right to Work

UK employers must carry out Right to Work checks on all employees or face significant Home Office penalties.

We enable cost-effective Right to Work compliance.

Right to Work

The law requires all companies to check and retain evidence of each employee’s legal right to work in the UK.

UK companies found to be employing an individual who does not have permission to work in the UK can be issued a fine of up to £20,000 per illegal worker, among other punitive measures.

Even where companies recognise their duties under the Right to Work legislation, and operate with policies and processes to comply, there are many practical issues that can give rise to a breach and result in enforcement action against the employer.

For example, it can be challenging to achieve consistency in implementing Right to Work processes across an organisation with multiple sites and a large and changing workforce. The guidelines are also extensive and hard to interpret, and UKVI frequently change the legislation making it difficult to stay up to date with the latest requirements.

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 support organisations across the UK with our Right to Work consultancy services, including:

  • Review of existing Right to Work check and monitoring policy, processes and systems to identify areas of risk & recommendations to avoid breaches and improve efficiency and effectiveness
  • Audit of existing employees’ Right to Work status and personnel records
  • Right to Work training for HR, line managers, supervisors and others in your organisation responsible for onboarding employees with documentation to confirm that training has been undertaken 

  • Processes to avoid discrimination whilst complying with Prevention of Illegal Working requirements
  • Guidance on record-keeping
  • Advice on individual employee’s status and complex issues such as List B documents, Tier 4 permitted working hours and loss of right to work
  • Challenging civil penalties & defending Home Office allegations of compliance breaches

Right to work: employer considerations

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.

Your HR processes and policies should be shaped around meeting the Home Office guidance of verifying 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.

A copy of the document must then 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.

List A workers include employees who are either British citizens or those with UK settled status or Indefinite Leave to Remain

If an individual does not fall within any of the List A categories, they are instead subject to immigration control and will be 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.

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.

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.

For organisations, the Right to Work regime presents a number of compliance risks, particularly in light of new requirements due to changes in EU worker rights and in light of the pandemic

List B workers with time-limited permission to work must be subject to repeat checks and where an employee loses the right to work, the employer should take advice to avoid falling foul of employment law issues.

In addition, all personnel – including non-HR – involved in recruiting and onboarding new recruits, such as line and site managers, should be trained on their Right to Work duties and processes, in line with the prevailing regulations.

Right to Work compliance is an ongoing demand. The Home Office is looking for continued monitoring of HR processes and consistent and competent implementation to ensure ongoing compliance.

For help and advice on meeting your Right to Work duties, please contact us.

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