An individual’s immigration status will dictate the documentation they must present to an employer to verify their Right to Work.
Employees with time-limited permission, for example, are required to produce items from UKVIs ‘List B‘ to evidence identity and temporary employment authorisation.
For an employer to comply with its duty to prevent illegal working, every employee should be onboarded in line with Home Office requirements to ‘Obtain, Check and Record’ appropriate Right to Work documents.
For employers, managing List B documentation is an area of risk. The Right to Work status of affected employees is by definition subject to change – and employers must stay on top of these changes.
What can employers do to effectively manage their List B employees, and reduce the risk of non-compliance and threat of civil penalty?
Your general duties as an employer are to:
- check and keep copies of original, ‘acceptable’ documents before someone starts working for you;
- carry out repeat checks at least once every 12 months if a person has a time limit on their stay; and
- not employ a person in breach of any restrictions such as type of work or the amount of hours they can work.
The Home Office sets out two definitive lists of ‘acceptable’ Right to Work documents, applicable by the nature of the permission an employee has to work in the UK:
- List A documentation – to be checked by the employer before commencement of employment where an individual has an ongoing Right to Work in the UK. This could include a British citizen, EEA national or a person settled here with permanent residence.
- List B documentation – to be checked by the employer before commencement of employment and every 12 months thereafter where the individual has a time-limited Right to Work in the UK.
Production of a valid, original List A document is sufficient to establish you as an employer have met your duty for checking an employee’s Right to Work for the duration of their employment with you.
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. They will 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, if you correctly follow the 3 step process above.
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.
List B Group 2 – A Complicating Factor
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.
Loss of Right to Work
If you establish that an employee no longer has the Right to Work in the UK, or that they are in breach or excess of their permission by being employed by you (e.g. number of working hours) and you continue to employ that person, you become liable for a civil penalty and the criminal offence of knowingly employing an illegal worker.
It is best to seek advice as soon as you become aware of an employee’s loss of permission before taking action. Instant dismissal of an employee who no longer has the Right to Work can in some cases give rise to employment law issues, such as unfair dismissal or discrimination claims, which will require navigation.
The Home Office for example offers an advisory service if you are concerned about dismissing a worker who no longer has a Right to Work.
Mitigating List B Management Risks
The potential for List B employees’ working status to change during the course of employment creates an area of risk for employers which requires close and careful management.
However, you must at any one time be able to accurately confirm the status of every employee in your organisation.
How do you achieve this when you are managing a sizeable volume of checks, all running to different schedules?
And where Home Office intervention is involved, for example for an appeal or overstayer application, the issues multiply. Notwithstanding the need to follow your internal HR processes fairly, each case must be taken on its own merit and timescales.
How can employers and HR teams ensure control and achieve effective List B document management without unnecessary drain on resource?
- Automate your Systems
The most effective approach to managing List B documents is through an automated solution.
Once you have been presented with the relevant documentation, you are under a duty to take reasonable steps to check its validity and make and retain copies in a format which cannot be altered.
The copies should be stored safely to satisfy compliance with your duties by, for example, uploading them to a List B Management system.
In addition, it is important that repeat checks on List B personnel are recorded as per UKVI guidelines and synced with the original record. An effective solution will sync the data into your HR or payroll system immediately.
Also, automated reports on visa expiry dates for List B Group 1 and List B Group 2 employees are invaluable prompts for HR teams to check on the progress of employees’ outstanding application.
2. Be Clear on Employees’ Duties
Employees must be made aware of their duty to notify you of any change in their circumstances or working status, and the wider requirements on them to manage their status appropriately. Employers should provide support to personnel, encouraging them to be proactive in respect of:
- the conditions attached to their respective visa status;
- their responsibility to advise HR of any changes which could impact on their status;
- the type of documents they should be collating for their next visa extension; and
- any travel plans or other considerations which could impact on the scheduling of their extension applications.