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Right to work in the UK

Six months on from new measures brought in to make it simpler to check the immigration status of potential employees, CMM looks at the changes and why providers need to ensure they get it right.

In May 2014, the Home Office brought in new measures to make it simpler to check the immigration status of potential employees and that they have the right to work in the UK. At the same time it doubled the maximum penalty for employers who break the law. The changes were designed to get tougher on those who break the rules, while supporting employers by ensuring they undertake the correct checks on their employees.

How did the law change?

The new illegal working requirements which came into force on 16th May 2014 made a number of changes to the previous illegal working scheme. One of the largest was that the maximum civil penalty for employing an illegal worker in the UK increased from £10,000 per illegal worker to £20,000 per illegal worker. The Government also reduced the list of acceptable documents for right to work checks, to make it easier for employers to comply.

There is no longer a requirement in all cases for annual follow-up checks for people with time-limited right to stay in the UK. The frequency of checks will depend upon the employee’s immigration leave, which should save costs to most employers. The document list for those with time-limited stay has also been separated into two sub-groups to clearly distinguish when the follow up check is required when permission to work as shown on the document expires, and when it takes place after 6 months.

Where the employer is reasonably satisfied that an existing employee has submitted an in-time application to the Home Office or has an appeal pending against a Home Office decision, their statutory excuse is extended for a maximum of 28 days beyond the expiry date of immigration leave in order for the employer to make the correct right to work check with the Home Office’s Employer Checking Service. There is also an extension of the grace period for conducting right to work checks on employees affected by the Transfer of Undertakings (Protection of Employment) Regulations. Employers now have up to 60 days available for these checks and must also keep a record of the date on which a check was made.

If employing international students who have limited immigration leave and permission to work, students are required to provide the employer with evidence of their term and vacation times for the duration of their studies in the UK. This should help employers to understand when they may employ a student part time and full time and is necessary to establish and retain a statutory excuse. Finally, the partial checks process that some employers found unhelpful and confusing are no longer used.

What will happen if employers are found to be employing an illegal worker?

If found to be employing an illegal worker, employers will receive a ‘referral notice’ to inform them that:

  • the case is being considered;
  • they may be liable to a civil penalty of up to £20,000 for each illegal worker.

Employers will not face a penalty if they can prove they conducted the required checks, unless it is found that they employed someone who they knew did not have the right to work. If found liable for a penalty, employers will be sent a ‘civil penalty notice’ and have 28 days to respond. The notice will include payment options and information on what to do next, as well as how to object and appeal against the penalty.

If convicted of ‘knowingly employing’ an illegal worker, this carries a sentence of up to two years’ imprisonment and/or an unlimited fine.

Businesses which employ illegal workers may also have their details published by the Home Office.

What if a job applicant can’t show their documents?

The Home Office’s Employer Checking Service will inform an employer see if an applicant has the right to work if:

  • they can’t show their documents and employers are reasonably satisfied that they have an outstanding appeal or application with the Home Office; and
  • they have one of the following documents: an Application Registration Card or a Certificate of Application.

To request a check, you can download and complete the employer checking service enquiry form available via www.gov.uk/check-job-applicant-right-to-work and email it to employercheckingservice@homeoffice.gsi.gov.uk.

What help is available?

The Government’s online interactive checking tool www.gov.uk/legal-right-work-uk provides quick and easy help for employers to check right to work documents. For employers who need more help they can contact the Home Office helpline on 0300 123 4699 or email businesshelpdesk@homeoffice.gsi.gov.uk.

The care sector attracts a lot of overseas workers, it is an employer’s responsibility to ensure all staff have a legal right to work in the country and with increase fines for employing illegal workers, it’s important to make sure your processes are up to date.

Three step guide for checking an applicant’s right to work

  1. Obtain the right documents

The types of documents that can be used as proof depend on whether the person has restrictions on their right to live and work in the UK. If an employee has a limited right to work in the UK, employers are required to check their documents again. The Government has produced guidance on preventing illegal working in the UK which contains lists of acceptable documents and when to check these, as well as tools to assist in conducting the right to work check. www.gov.uk/government/collections/employers-illegal-working-penalties

  1. Check the documents are valid

You need to check that:

  • the documents are original, genuine and refer to the applicant;
  • the dates for the worker’s right to work in the UK have not expired;
  • photos are the same across all documents and look like the applicant;
  • dates of birth are the same across all documents;
  • the person has permission to do the type of work you’re offering (including any limit on the number of hours they can work);
  • all documents are current (other than those issued to UK, EEA and Swiss nationals and Permanent Residence Cards issued to family members of EEA nationals); and
  • if two documents give different names, supporting documents show why this is, for example, marriage or divorce.
  1. Copy and keep the copied documents for your records

When you copy the documents:

  • make a copy that can’t be changed, such as a photocopy;
  • for passports, copy any page with the expiry date; the applicant’s personal details including nationality, date of birth, name, photograph and signature together with the current immigration endorsement (eg a work visa) copied on both sides;
  • for all other documents, make a complete copy;
  • keep copies during the worker’s employment and for two years after the person stops working for you;
  • ensure you record the date you made the check; and
  • for migrant students, keep a record of their term and vacation times.

With thanks to the Home Office.

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