For the first time, the Home Office recommends employers should check workers – not just employees – have a right to work in the UK. Its new guidance also provides welcome clarification of other immigration rules and guidance for employers. We have summarised the main changes below, together with our recommendations on what businesses should do now.
The Home Office recommends that employers should check that “workers” - not just “employees” - have a right to work (RTW) in the UK
Previous Home Office FAQs, published in May 2015, said employers were not under a duty to check individuals hired as contractors or subcontractors, although it was open to businesses to do so. The new guidance states that there are “compelling reasons“ why businesses should now check that contractors conduct the correct RTW checks on the people that they employ: risk of reputational damage, disruption to operations, and the impact on health and safety and safeguarding obligations.
It even recommends that employers may also wish to use the guidance to perform RTW checks on those who are genuinely self-employed. Although not stated in the guidance, we anticipate that the Home Office may expect businesses with Tier 2 sponsor licences to abide by this new guidance and assess wider RTW compliance in routine sponsor audits.
This is a subtle shift in emphasis since the previous guidance, and paves the way for a future expansion of the RTW regime to compel businesses, including gig economy and platforms reliant on non-employed labour, to perform checks on workers as well as employees.
Recommendations - check the terms of commercial agreements with third party contractors, (especially those sending workers to your site) to verify that the contractor has carried out RTW checks correctly, and that you have a right to terminate the contract if this has not been done. If your business is hiring self-employed contractors directly, we recommend carrying out RTW checks in the same way that you would when hiring new employees.
Confirmation of additional documentation employers may accept from non-EEA nationals evidencing their status as a family member of EEA national
Non-EEA nationals who are the family members of an EEA national exercising a treaty right in the UK have a right to work in the UK under the EU’s Free Movement Directive, implemented into UK law by the Immigration (European Economic Area) Regulations 2016. Recognising that EEA nationals are not required to obtain formal evidence of their right to work in the UK (such as a visa), the Home Office has listed documents which employers may request from non-EEA nationals relying on their relationship with an EEA national as evidence of their ability to work in the UK. However, relying on this additional documentation will not provide employers with a statutory excuse against a civil penalty for illegal employment if it is later found that the non-EEA national does not have the right to work in the UK.
Recommendation - businesses should remain cautious when conducting RTW checks for these employees and continue to only accept documents as listed on the Home Office RTW checklist, which is available here.
Clarification regarding permission to work if there is a delay in a non-EEA national collecting their Biometric Residence Permit (BRP) card
Most non-EEA work visa applicants, including those using Tier 2 and the Tier 5 Youth Mobility routes, are now issued with a temporary 30 day vignette in their passport to enable them to travel to the UK and collect their BRP card (which confirms their visa conditions, including a visa expiry date). An employer is permitted to rely on the 30 day vignette when conducting the employee’s first RTW check and must repeat the check once the employee has collected their BRP card (the repeat check must be undertaken before the expiry date of the 30 day vignette).
The Home Office has confirmed that if the migrant does not collect their BRP card before the expiry date of the 30 day vignette, the employer may allow the migrant to continue working in the UK if the employer “believes the employee continues to have the right to work in the UK”. If it transpires that the employee does not have permission to work in the UK, the employer could be liable for a civil penalty for illegal employment.
Recommendation - Employers who sponsor non-EEA nationals under Tier 2 and so have a greater involvement in the visa process may feel more comfortable allowing a migrant to continue to work after the expiry date of the 30 day vignette if there is a delay with the BRP card being issued. We would not recommend that employers adopt this practice for migrants holding non-sponsored visas (e.g. Tier 5 Youth Mobility).
Additional penalties introduced by the Immigration Act 2016
Further information is provided regarding the Home Office Compliance Teams’ ability to issue closure notices and compliance orders for employers who repeatedly breach illegal working provisions.
Prevention of illegal working in “high-risk” industries
The Immigration Act 2016 amended existing licensing regimes in ‘high risk’ areas of the UK economy (such as taxis and private hire vehicles and the alcohol and late night refreshment sector). Further guidance is given on the implications for a licensed business that receives a civil penalty for illegal working. For example, the Home Office now has powers to suspend or revoke a business licence.
The Home Office has also taken the opportunity in publishing this new RTW guidance to remind employers about the greater co-ordination across government agencies, including the Home Office and HMRC, to detect and address illegal working. The Home Office will use the full range of sanctions against those found to be employing illegal workers, or individuals working without permission in the UK.