Following the introduction of the new right to work checks on 16 May 2014, which were reported in our May 2014 update, the immigration team at Penningtons Manches held a series of breakfast seminars and bespoke training sessions for HR teams. The sessions were an opportunity for delegates to share their experiences, discuss the challenges they face on a day-to-day basis and find solutions to ensure a company remains compliant.
The key challenges highlighted by the delegates were the following:
How to ensure the check is conducted and evidence retained prior to commencement of employment
Usually, checks are conducted on the start date and it is then difficult to demonstrate that a check was actually carried out before the (prospective) employee was permitted to start. We worked with delegates on the different mechanisms which they can introduce to ensure this requirement is met, eg introducing a document check for all prospective employees at interview stage.
Knowing the employment restrictions on different immigration categories
This highlighted the importance of training the staff who carry out the checks on the right to work as they need to be able to differentiate between the immigration categories and the restrictions associated with them. For example, a Tier 1 (Entrepreneur) Migrant can only work for his or her business(es).
Term time/non-term time working by international students and ensuring hours are not breached
We have been advising clients to obtain evidence of international students’ term times in order to ensure that any hours worked by the students remain within those permitted. The new regulations now make this a requirement when hiring international students. See the Home Office's FAQ for further details on what is expected of employers when hiring international students. Employers should ensure that the documents provided relate to the student whom they wish to employ and that the documents are verified with the education provider where this is not clear.
Non-EEA family members of EEA nationals and obtaining the necessary evidence of right to work
The new guidance issued by the Home Office acknowledges that there is no mandatory requirement for non-EEA nationals who:
- are resident in the UK as a family member of an EEA national; or
- have a derivative right of residence in the UK
to register with the Home Office or to obtain documentation issued by the Home Office. The guidance also states that it is open to an employer to accept evidence other than that set out by the Home Office in List A and List B as evidence of the family member's right to reside and work in the UK. However, the guidance also states that, should it later transpire that the family member did not qualify to work in the UK, the employer would be liable to payment of a civil penalty. Our advice is, therefore, that employers should obtain the evidence as set out in List A and List B prior to the commencement of the employment to ensure protection.
The Home Office has published a series of guidance documents to assist employers in addressing these questions which can be found here. An additional tool is an online checker which is designed to assist employers in deciding whether or not the documents with which they have been presented meet the requirements.