Employers who fail to carry out right to work checks in accordance with Home Office Guidance risk the sanction of a civil penalty (up to £20,000) or ramifications for their Sponsorship Licence including suspension and potential revocation. On 16 August 2017, the Home Office issued updated guidance on Employers' Right to Work Checks.
The updated Home Office guidance can be accessed here. The most significant changes which employers should familiarise themselves with are:
1. Non-European Economic Area (EEA) family members of EEA Nationals
The updated guidance includes advice on evidence employers should request from the non-EEA family members of EEA nationals. Acceptable evidence that provides a time-limited statutory excuse include Residence Cards and Accession Residents Cards (for the family members of Croatian nationals), whereas a Permanent Residence Card provides a continuous statutory excuse.
2. Closure Notices, Compliance Orders and Alcohol Licensing
The guidance includes, for the first time, information regarding Closure Notices, Compliance Orders and Alcohol Licensing.
Closure Notices and Compliance Orders are sanctions which can be imposed against an employer where illegal working is found and where an employer has previously failed to comply with illegal working legislation. If a Closure Notice is issued, the employer's premises will be closed for a limited time. Where a Compliance Order is issued, special conditions are placed on the employer to support compliance with its duties in respect of right to work checks and preventing the employment of illegal workers.
From 1 April 2017, those applying for licences to sell alcohol and late night refreshments (between 11pm and 5am) must carry out immigration checks as part of the licensing regime. Furthermore, the Home Office is now notified of all relevant licence applications and can carry out inspections where it considers that the granting of a licence is prejudicial to preventing illegal working.
3. International Students (Non-EEA)
The updated guidance includes simplified advice in respect of employing non-EEA international students.
4. Voluntary work and Volunteers
The updated guidance draws a distinction between "volunteering" (which is permitted for individuals granted immigration permission to be in the UK) and undertaking "voluntary work" (which, with some exceptions, is not). Given the complexity of the distinction between "volunteering" and "voluntary work" and the circumstances in which each is permitted, employers are advised to seek professional advice before engaging a foreign national in either of these capacities.
5. Application Registration Cards ("ARCs")
ARCs are issued to asylum applicants to demonstrate that they have made an asylum claim. From July 2017, all new ARCs were updated to include security feature, such as biometric facial image and an expiry date. All ARCs issued prior that date are still valid until 2019, and either can provide a statutory excuse for 6 months provided that an employer also obtains a Positive Verification Notice via the Employer Checking Service.
What this means for Employers
With increasing scrutiny and tough penalties for non-compliance it is vital that employers have robust procedures in place for carrying out right to work checks and keep up to date on changes in the Home Office Guidance. Should employers become aware of any circumstances that an employee may have lost the right to work in the UK (or there are grounds to suspect this is the case), employers need to take prompt action and investigate that employee's right to work status, taking steps to end the employee's employment (following a fair process) if the right to work cannot be established.