Many employers and HR staff will be all too familiar with the importance of conducting compliant Right To Work checks in the UK. That being said, with more than £10.5 million in fines issued in the 3rd quarter of 2019, clearly (better) procedures need to be in place.
What are right to work checks?
These are checks to be conducted by employers to ensure (prospective) employees have the legal right to work in the UK.
Why should I conduct these checks?
If you are found to be employing illegal workers without a legal right to work in the UK, as an employer, you are at risk of receiving a civil penalty of up to £20,000 per illegal worker and/or imprisonment. In addition, other sanctions can include: public “naming and shaming”; closure of your business; revocation of licences required to operate your business (e.g. alcohol, late-night trading, and sponsoring migrants).
By conducting checks, and retaining compliant evidence, as an employer you can establish a statutory defence against liability for a civil penalty. However, it is still an offence if you know/ have reasonable cause to believe the individual does not have a right to work, and you (continue to) employ the individual.
When should I conduct these checks?
Businesses and employers in the UK should be conducting checks on ALL prospective employees prior to their employment starting.
It might be worth diarising to conduct follow-up checks on an annual or more frequent basis. This would be appropriate, for example, if your (initial) checks will only establish a time-limited statutory excuse, but care should be taken to avoid discrimination.
How can these checks be conducted?
Organisations can choose to manually inspect original documents in the presence of the person the document relates to. Acceptable documents include:
- British citizen passport
- Current, valid biometric residence permit
Alternatively, since 28 January 2019 it has been possible to check online and this will require the individual providing you with some basic information and a “share code”. However, an online check is not always possible, for example if the individual is a British citizen passport holder.
From 30 March 2020, employers have also been able to carry out “virtual” right to work checks using the temporary adjusted measures, which was due to end on 16 May 2021, but will now end on 20 June 2021. From 21 June 2021, employers will need to go back to doing manual checks of original documents or checking online. The government previously advised that retrospective checks were required; however, this is no longer the case. Representations have been made to the Home Office to retain an element of virtual right to work checks and it remains to be seen whether this will be implemented.
What about EEA nationals?
From 1 January 2021, “new” EEA nationals arriving in the UK without a pre-existing right to work, require an appropriate visa. However, there is a “grace period” until 30 June 2021 allowing employers to continue accepting EU passports/ national identity cards as proof of the individual’s right to work.
During the grace period, employers cannot legally insist that individuals provide evidence in the form of status under the EU Settlement Scheme. That being said, if you reasonably believe that an EEA national arrived on/ after 1 January 2021, and doesn’t have a pre-existing right to work, you would be at risk of receiving a civil penalty. It is expected that new guidance will be issued on/ around 1 July 2021.
How should I retain the evidence?
Evidence should be kept securely (and easily accessible by designated staff) and in a format which cannot be altered e.g. a scan or PDF. A record of the date on which the right to work check made should also be recorded.
Conclusion
Given the potential implications including potential costs and risk of imprisonment, it is important that compliant right to work (and follow-up) checks are conducted – ensuring that compliant evidence is always retained. You may wish to diarise important dates in various sources to minimise the risk of these passing without action being taken. By doing so, you minimise risk of exposure and can establish a statutory excuse.
If you have any questions and/or would like tailored advice on any UK immigration matter, please speak to Vincent Chung of Dixcart Legal Limited at: hello@dixcartuk.com. Vincent specialises in the practise of UK immigration lawyer and is a dual qualified solicitor in Scotland, and England & Wales.
For more information and support with your HR responsibilities, please contact our team today.
