Preventing illegal working - changes to right to work checks

Preventing illegal working - changes to right to work checks


Author: Sian Hoare

Employers have a duty to prevent illegal working and are obliged to carry out prescribed document checks on individuals before they commence work to ensure they have permission to work in the UK.

Penalties for non compliance

Employers may be liable to an increased civil penalty of up to £20,000 for each illegal worker if they fail to carry out the necessary checks correctly, or at all, and are found to be employing someone who doesn't have the right to work in the UK.

In addition, if you knowingly employ an illegal worker, regardless of whether you have conducted documents checks, you will be committing a criminal offence and could face up to 2 years' imprisonment and/or an unlimited fine.

In order to avoid these penalties it is important for employers to be aware of the recent changes to the prescribed document checks.

So, what are the changes?

The key changes that you should be aware of are:

  • The list of acceptable documents for right to work checks has been reduced by the removal of travel documents, work permits and general Home Office letters
  • Documents containing an expiry date must now be current with the exception of those showing that the holder of the document is a British Citizen, a citizen of the UK and Colonies having a right of abode, a national of a European Economic Area country or Switzerland or their family members with permanent residence (e.g. an expired UK passport would provide evidence of a right to work in the UK)
  • The frequency of follow-up checks for people with time-limited right to work is no longer every 12 months. For documents containing an expiry date, the follow-up check is now required when the permission to work expires. When a Certificate of Application or an Application Registration Card is presented or the employee has no acceptable documents because they have an application with the Home Office (i.e. to extend or vary permission) or has appealed against an immigration decision, the follow-up check is required 6 months after the date of the initial check
  • The acceptable documents set out in List B, which provide a statutory excuse for a limited period of time, has been separated into Group 1 (the documents for repeat checks when the employee's permission to work expires) and Group 2 (the documents for checks required after 6 months)
  • Where you are reasonably satisfied that an employee has either made an application to the Home Office or appealed a decision in relation to an application, the statutory excuse will be extended for a further period of up to 28 days from the expiry date of permission to work. You must contact the Employer Checking Service during this period to verify that the employee's right to work continues whilst their application or appeal is being determined. If a Positive Verification Notice confirming permission to work is received, the excuse will last a further 6 months from the date in the notice. If, however, a Negative Verification Notice is received confirming the employee does not have permission to work, the statutory excuse will end and you must cease to employ that individual from that point
  • The grace period for conducting right to work checks on people acquired by virtue of the Transfer of Undertakings (Protection of Employment) Regulations 2006 has increased from 28 days to 60 days
  • You must now retain a record of the date on which a check was made and the requirement to copy the first page of the passport in order to establish and retain a statutory excuse has been removed
  • In order to establish and retain a statutory excuse for International students who have a limited right to work, you are required to obtain evidence of the student's academic term and vacation times for the duration of their studies in the UK whilst they work
  • A partial right to work check (i.e. when you check and copy only one of a specified combination of documents or fail to do follow-up checks) is no longer a mitigating factor in the calculation of a civil penalty

For further information on how to update your immigration policy and correctly conduct right to work checks please contact a member of the Shoosmiths' business-immigration team.

About the Author

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Sian Hoare


03700 86 6785

Sian is an experienced employment lawyer advising clients on all aspects of employment law including employment contracts & handbooks, disciplinary, grievances, redundancy & reorganisation, restrictive covenants & confidentiality, TUPE advice and executive appointment & exits as well as business immigration.

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