End of 12-month right-to-work checks
In 2013 the Home Office launched a consultation on illegal working (for further details please see "Home Office launches consultation on prevention of illegal working"). Proposals included the removal of the requirement for employers to carry out annual right-to-work checks on all employees with limited permission to reside in the United Kingdom, instead requiring them to check only on expiry of the employees' visas.
The Home Office has now published a draft code of practice on preventing illegal working which updates that issued in February 2008. It includes details on the following changes to the illegal working scheme:
- In respect of employees with temporary permission to reside in the United Kingdom and undertake the work in question, employers are no longer automatically required to conduct checks every 12 months following the initial right-to-work check in order to retain their statutory excuse. Instead, a follow-up check is required, as specified in the code.(1) Generally, this check is carried out when the employee's permission to reside in the United Kingdom and undertake the work in question expires, as evidenced by the document or combination of documents produced for the right-to-work check.
- The range of documents that are acceptable for checking the right to work has been reduced.
- In respect of students with a restricted right to work, employers are required to retain evidence from the student's education sponsor of his or her term and vacation times, covering the duration of the period of study in the United Kingdom for which the student will be employed.
- The grace period for conducting right-to-work checks for employees acquired as a result of the Transfer of Undertakings (Protection of Employment) Regulations has been extended to 60 days.
The new guidelines entered into force on May 16 2014. For right-to-work checks carried out before this date, the code published in February 2008 will still apply.
Automation of unrestricted certificate of sponsorship allocation renewals
On May 2 2014 the Home Office announced that it will be automating certificate of sponsorship renewals in the Tier 2 Unrestricted and Tier 5 categories for all sponsors, with effect from August 6 2014. Only allocations which are due to expire from August 6 2014 onwards will be affected by this change. Sponsors should note that if they have manually applied to renew their certificates of sponsorship from April 6 2014, these applications will be processed in the usual way. However, from April 6 2015 their certificates of sponsorship will be renewed automatically and it will not be possible to submit a renewal request manually. Sponsors will still be able to apply to add further unrestricted certificates of sponsorship to their allocation using the 'Request CoS/CAS allocation increase' function at any time.
For further information on this topic please contact Ilda De Sousa at Kingsley Napley by telephone (+44 20 7814 1200), fax (+44 20 7490 2288) or email (email@example.com). The Kingsley Napley website can be accessed at www.kingsleynapley.co.uk.
(1) A follow-up check will not be necessary if the employee can produce documents found in List A on page 14 of the draft code. The statutory excuse will be for the whole duration of the employee's employment. However, if documents are produced from List B of the draft code, follow-up checks will be required where a visa expires. Employers have 28 days from the visa expiry date to contact the Employer Checking Service to receive a positive verification notice confirming the employee's continued right to undertake the work in question where there is an outstanding extension or appeal application. The statutory excuse will be preserved for a further six months during the validity period of the positive verification notice, after which a further check will need to be carried out. If a negative verification notice is received, the statutory excuse will be terminated as the employee will no longer have permission to work for the employer.