With the continuing surge of action against employers, especially those that hold a sponsor licence, our latest instalment on Prevention of Illegal Working provides practical tips to employers on how to comply with the all important verification checks.
Employers can protect themselves from liability under the Prevention of Illegal Working legislation by checking that their prospective employees have the right to work in the UK. These checks must be carried out before the employment begins and copies of passports must be kept and, where relevant, documents evidencing the right to work in the UK. If the UKBA discovers that an employee is working without permission and the employer cannot produce copies of the relevant documents and show they checked them before the employment commenced, the employer can be issued with a penalty of up to £10,000 per employee.
Date of check
We have come across a number of employers who are still conducting the check on the same day the employment commences. We consider this to be a fairly high risk approach for employers to take and recommend avoiding such a risk where possible. Whilst it may be possible to argue that the check was performed before the employee physically commenced work on their first day, this could be difficult to prove for many employers.
We recommend as best practice that employers take copies of the relevant documents:
- during the final stages of the interview process; or
- the day before the employee’s start date; or
- before the employee’s official start time only if it is possible to provide unequivocal evidence of this
-ensure that a copy of the front page of the passport is taken this is often overlooked and is something the UKBA insists on being done;
- copies can be kept electronically but make sure that you use a non-rewritable format eg pdf. It is important to ensure that the copies are dated (including the time) and signed in order to confirm when the copies were taken;
- copies must be kept for the duration of the migrants' employment and for the next two years.
- expired passports - these do not have implications on the employee’s right to work in the UK provided the employee’s right to work (where relevant) has not expired. Please note however that Right of Abode endorsements granting working rights are only valid for the duration of the passport;
- diarise alerts at least three months in advance of the expiry date of employees with limited leave to remain, ensure that applications for extensions are submitted in time by the employee and diarise a reminder to check with the employee that they have received an extension of leave to remain;
- diarise an annual check date - see paragraph below for further details.
Carrying out the right to work check before commencement of the staff member's employment provides the employer with the protection provided by the legislation for the following 12 months. Before the expiry of those 12 months, employers need to conduct the check again to obtain protection for the next 12 months. The protection will be valid providing the employer does not acquire knowledge that the immigration status of the employee has adversely changed.
For large organisations, carrying out the annual check on the anniversary of each employee’s start date can be impractical.
The employer can instead carry out two further checks during the year on all employees to align all employees in one specific annual check date.
For the UKBA's latest information about prevention of illegal working, click here.