The Home Office has finally published its revised Code of Practice on Preventing Illegal Working (the “draft Code”) covering the changes to the right to work check requirements for EEA citizens which come into effect on 1 July 2021.
In this article, we look at the changes that the draft Code introduces, how this will affect UK employers and the areas of continued uncertainty.
The Home Office is clearly determined to keep employers on their toes with the changes to the right to work (“RTW”) checks as this is our third blog on this topic since April:
As previously explained, employers must check that all employees have the legal RTW for them in the UK. Failure by an employer to undertake the correct RTW check can lead to a civil or criminal penalty. The draft Code concerns itself with the civil penalty regime only.
Provided an employer has completed the RTW check correctly and can adequately evidence this, if it later transpires the employee did not have the legal RTW for them in the UK, the employer should have a statutory defence to the offence of employing someone illegally.
Draft Code will be effective from: 1 July 2021
The draft Code covers the changes to the RTW checks for EEA / Swiss nationals, and any third country family members, which will come into effect on 1 July 2021. This ties in with the 30 June 2021 deadline for applications to be submitted under the EU Settlement Scheme to enable EEA / Swiss nationals and family members to remain living and working in the UK legally.
The draft Code indicates that a RTW check undertaken under the current Code of Practice will not have to be repeated retrospectively.
It is important to note that, if a RTW check is undertaken before 1 July 2021, it is the current Code of Practice that will apply to the check, even if the individual is due to commence their employment on or after 1 July 2021. For example, if an employer undertakes a RTW check on an EEA national prior to 1 July 2021, they would only be required to see the individual’s passport in order to establish a statutory excuse, even if the individual’s employment commenced on or after 1 July 2021. Any RTW checks undertaken after this date will require the EEA national to evidence that they have the appropriate immigration permission to undertake their proposed role.
However, if a breach occurs on or after 1 July 2021, the draft Code will apply when calculating the penalty, even if the check was undertaken before 1 July 2021. In addition, any follow up checks required from 1 July 2021 must meet the requirements of the draft Code.
Changes to the lists of acceptable documents
The draft Code amends the list of acceptable documents to include those issued to EEA / Swiss nationals, and their family members, by the Bailiwick of Jersey or Guernsey. There is also the addition of the Frontier Work Permit as an acceptable document. Irish passports are also now included.
The lists of acceptable documents are still called List A and List B. List A sets out the acceptable documents to establish an ongoing statutory excuse. In other words, if the RTW check is made using a document from List A, no follow up check will be required.
List A makes it clear that a passport may be current or expired if it belongs to a British or Irish citizen. Passports for all other nationalities must be current.
List B remains the list for those employees with time limited permission to live and work in the UK and has a several additional documents for EEA / Swiss nationals.
If an employer has made the RTW check using a List B document, they must diarise a follow up check at the appropriate time.
Employer Checking Service
Where an individual is unable to provide a document which satisfies the RTW check requirements, for example, because the individual has an immigration application pending with the Home Office, an employer may obtain a statutory excuse, which lasts for six months, through being issued with a Positive Verification Notice (“PVN”) by the Employer Checking Service (“ECS”). The draft Code states that, for existing employees, an employer will continue to have a statutory excuse for up to 28 days from the expiry date of their immigration permission to enable it to obtain a PVN.
However, the 28 day grace period does not apply to checks carried out before an individual starts employment. In those circumstances, the employer should delay the individual’s start date until it receives a PVN.
The draft Code also states that if the ECS has not considered an employer’s request within five working days, an automatic response will be sent to the employer informing them that the prospective employee may be hired. If the individual has started work on the basis of this message from the Home Office but a Negative Verification Notice is then received, employers should seek employment advice urgently before terminating the employment.
Any response from the ECS must be kept on file so that, if required, it can be presented to the Home Office as a defence against liability to pay a civil penalty.
Covid-19 adjusted right to work check
The draft Code also includes details of the current Covid-19 adjusted RTW check. As explained in our previous blog, the adjusted process is for checks carried out from 30 March 2020 to 20 June 2021 inclusive in acknowledgement of the fact that most offices have had to shut and many employees have been working from home. The proposed ending of this concession on 21 June is in line with the UK Government’s aim to lift all lockdown restrictions, including the working from home guidance, on that date.
However, many employers and stakeholders are calling for the Covid-19 RTW concession to be extended as, even if all lockdown restrictions are lifted on 21 June, a significant number of employers are not looking to require all their staff to return to the office for several months.
With increasing hospitalisation and infection rates in the last few days due to the Delta variant, there are also calls for the complete relaxation of restrictions to be postponed. If the UK Government does postpone the full lifting of lockdown restrictions, it is hoped that the Home Office will extend the Covid-19 RTW concession in parallel with this.
The draft Code has primarily been produced to give employers guidance on how to complete a RTW check on EEA / Swiss nationals, and their third country family members, from 1 July and we do not expect any changes to the draft Code before it is published in its final form on 1 July.
Importantly, there are no changes in the level of the civil penalty or how it is calculated. The additional guidance for the ECS is certainly good news for employers as it is regularly taking more than five working days to receive a response from the ECS.
Any employers who are concerned about how to include the new requirements into their current RTW check processes should seek legal advice.