Under section 15 of the Immigration Asylum and Nationality Act 2006, an employer may be liable for a civil penalty if they employ someone who does not have the right to undertake the work in question.
On 16 May 2014, the UK Visas and Immigration (UKVI) made a number of changes to the document checks employers must carry our before employees start employment and during their employment to confirm that they have the right to work in the UK if they wish ant to benefit from the statutory excuse. A summary of the changes to the document checks are as follows:
- Removal of annual checks
The frequency of follow up checks for people with a time-limit on their right to work is no longer every 12 months. List B has been separated into Group 1 and Group 2 to clearly distinguish the frequency of repeat checks required.
A copy of the new List B is detailed in the new right to work checklist: Right to work checklist.
The documents in Group 1 of List B require that a follow up check is undertaken at the point that the individuals visa expires. There is no longer a requirement to check these documents once a year. However, we would recommend that employers engage with employees three months before their visa is due to expire to confirm the steps they are taking to renew their visa.
If a migrant presents a List B Group 2 document (e.g Application Registration Card), employers must now carry out an Employer Checking Service (ECS) check. If a Positive Notice of Verification is received, this will be valid for 6 months before a follow up check will need to be carried out.
Employers can therefore remove the need for annual checks from their processes altogether, if they wish. However, employers may like to adopt a more robust approach, especially where the procedures are already embedded and keep the checks in place to safeguard against any unnoticed/undiscovered issue.
- Reduction in list of acceptable documents
The list of acceptable documents has reduced. The type of documents deemed to be acceptable have not changed dramatically. However, travel documents, work permits and general Home Office letters have been removed from the lists.
- Extension of statutory excuse for a maximum of 28 days beyond visa expiry date
An employee can keep working after their visa expires if they produce certain documents to confirm that they made an application for a new or renewed visa in time (ie before visa expiry). This has now been formalised. The statutory excuse (i.e. defence against illegal working) has been extended for a maximum of 28 days beyond the expiry date, where the employer is reasonably satisfied that an employee has submitted an application or has an appeal pending against a decision on an application. However, to benefit from this, employers must now make an ECS check. If a Positive Verification Notice is received, the employer will have a statutory excuse for a further 6 months from the check. As always, it is important that an employee provides evidence that they have submitted their application (e.g. proof of postage etc) either before/on the date of visa expiry.
- A record of the date when the document check was made must be retained
We always recommended that it is good practice to keep a record of the date on which the document check was made. This is now mandatory. Employers are no longer required to retain a front copy of the passport.
- International students to provide evidence of studies
Employers must now obtain evidence of student’s academic term and vacation dates from the educational provider in order for an employer to establish and retain the statutory excuse when employing students.Employers must now obtain evidence of student’s academic term and vacation dates from the educational provider in order for an employer to establish and retain the statutory excuse when employing students.
- Conducting right to work checks following a TUPE transfer
The grace period to conduct right work checks on people acquired by a TUPE transfer has increased from 28 days to 60 days.
- Increase of the civil penalty to £20,000
The civil penalty for employing someone who does not have the right to work without a statutory excuse has increased from £10,000 to £20,000 per illegal worker.
The UKVI have published a new guide outlining the changes: An employer's guide to right to work checks.