Earlier this year, UK Visas & Immigration (UKVI) made significant changes to the UK's rules on preventing illegal working, by simplifying the right to work checks and strengthening the penalties for non-compliance. Unless it has a statutory excuse, any employer found to be employing illegal workers will be liable for a civil penalty of up to £20,000 (double the previous maximum fine) for each illegal worker. Businesses found to be knowingly employing illegal workers may also be prosecuted and face up to 2 years’ imprisonment and/or an unlimited fine.
In addition to a civil penalty, failing to undertake compliant right to work checks could lead to UKVI downgrading or revoking sponsor licences held by that employer, as well as incurring significant adverse publicity for the business. This will also affect employees holding visas as, if a sponsor licence is revoked, any sponsored employees' visas will also be curtailed.
Employers can obtain a statutory excuse (defence) against a civil penalty by carrying out right to work checks on their employees in accordance with the guidance. We have reflected below on the changes to the right to work checks and the legal obligations on all employers to prevent illegal working.
To get a statutory excuse, employers must follow a three step process, as set out in the summary guidance:
- Request and obtain the employee's original documents (only prescribed List A or B documents are acceptable);
- Check the documents in the presence of the document owner; and
- Make and keep a dated copy of the documents
Employers must keep on the relevant personnel file hard copies or scanned unalterable copies (e.g. pdf) of every document they have checked. A note must be made of the date the check is conducted. The copies must be kept securely for the duration of the person’s employment and for a further two years after they end work.
The initial right to work check should be carried out before employment starts. Ideally the check should be performed before (rather than on) the first day of employment, to avoid the need to delay the work start date if the employee is unable to produce satisfactory documentation. Depending on your recruitment processes, you may find it most convenient to request documents from all those called to a first interview, or just from those called to a second interview, or only from persons short-listed to fill the vacancy. To avoid unlawful discrimination, you should have a consistent approach, so if you ask for documents from one applicant, you should make sure you ask for documents from all applicants being considered at that stage.
Right to Work Checks
The new rules apply to any right to work checks for existing employees (employed on or after 29 February 2008) or new hires which are performed after 16 May 2014.
- The rules have been relaxed so that employers are no longer required to check the documentation of employees with time limited right to work every 12 months. Checks must be undertaken prior to commencement of employment and on expiry of the visa.
- All documents with expiry dates (e.g. passports) must be current. Any UK visa must be endorsed in the holder’s current passport - rather than in an expired passport - or on a Biometric Residence Permit (BRP). Exceptions to this rule have been made for British or European nationals and non-European nationals who hold EEA Permanent Residence Cards.
Comment: if an employee satisfied the right to work checks before 16 May 2014 by presenting a visa in an expired passport or in a valid passport that has since expired, they cannot rely on this document on a repeat check. The employee must instead apply to transfer their visa to a Biometric Residence Permit and, where there is a pending application or appeal with UKVI, the employer must apply to the Home Office for a Positive Verification Notice to obtain a statutory excuse.
Comment: as Tier 2 visas will be endorsed on the employee's most recent passport or on a new BRP card, which in many cases will be available before work starts or the last visa ends (as applicable), this requirement will be of more concern to companies recruiting or employing non-European nationals holding personal visas that are not sponsored, for example employees on Tier 1, Tier 4, Tier 5 or dependant visas.
- The number of documents satisfying the right to work checks has been reduced. Documents are set out in List A (which provides a complete excuse lasting for the duration of employment) and List B (which provides a time limited statutory excuse). List B has been separated into two groups which require a different frequency of repeat checks. Documents under List B Group 1 provide the employer with a statutory excuse until the end date of the visa. Documents under List B Group 2 provide a statutory excuse for 6 months. You can see all of the acceptable List A and B documents in UKVI's Right to Work Checklist.
- The statutory excuse against a civil penalty will be extended to 28 days after the date of expiry of the visa permission if the employee has:
- either a visa application or an appeal pending; and
- the Employer Checking Service has verified that the employee has the right to work in the UK and perform the work in question. If this is the case, the ECS will issue a Positive Verification Notice which will provide a defence for 6 months from the date in the Notice. After 6 months, the employer must perform new checks, unless the application/appeal was successful during that 6 months and the employee can provide their employer with evidence of new immigration status. Should the employer receive a Negative Verification Notice, the employee has no right to work and therefore there is no statutory excuse to illegal working.
Comment: the ECS is not always able to verify that an employee holds the right to work in the UK. This can leave employers in a difficult position as to whether they can continue to lawfully employ the migrant, with a conflict between its duties under immigration law and the employment rights and protections available to employees. You should take advice before making any decision if you find yourself in this position.
- Employers recruiting international students on Tier 4 visas with a limited right to work (up to 20 hours per week during term-time) must obtain evidence of their academic term and holiday dates for the duration of their UK studies to establish and retain a statutory excuse.
Comment: these additional checks reflect concerns that international students may exceed their permission to work. Evidence should be requested from the student but must originate from the education institution sponsoring them. We recommend that employers monitor and record working hours and also ensure that employment paperwork issued to the student emphasises the applicable limit on working hours during term-time. Although international students can work full-time during vacation periods, they are not permitted to work in permanent roles.
- The period during which right to work checks must be conducted for employees inherited as a result of a qualifying business/undertaking transfer ("TUPE") has been extended from 28 to 60 days.
Comment: The transferee business cannot rely on the transferor's right to work checks, so must conduct its own checks to have a statutory excuse. Although there is more time to perform the check, if an employer inherits under TUPE an employee with a time limited Tier 2 visa, it will still need to apply to UKVI on or immediately after the transfer date to take over sponsorship of the visa. If it does not have one already, this will require the new employer to apply for a sponsor licence within a 20 working day period from transfer, so pre-transfer immigration advice should be taken early as part of the workplace planning.