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Right to work checks - is your business prepared for a UKVI audit?

29 May 2014 #Immigration


All employers need to carry out right to work checks

As an employer, you have a duty to prevent illegal working in the UK by carrying out checks to ensure that your employees have the right to work here. The illegal working provisions of the Immigration, Asylum and Nationality Act 2006 mean that an employer may be issued with a penalty of up to £20,000 per illegal worker (from 16 May 2014) where they employ someone who does not have valid permission to be in the UK or to do their job and do not have a “statutory excuse”.

What’s the risk?

With immigration and border control continuing to be a politically controversial topic, reports of raids being carried out by UKVI (UK Visas and Immigration, formerly UKBA) on businesses are increasingly frequent. According to the Home Office, between October and November 2013, 408 penalties were issued to businesses that were found to be employing workers illegally, with a total value of £3,179,250.

For employers with a sponsorship licence which enables them to hire and transfer workers from outside the European Economic Area (EEA), any failure to carry out appropriate right to work checks could lead to their licence being downgraded, suspended or revoked. London Metropolitan University famously had its sponsor licence revoked in August 2012 for not meeting its responsibilities, meaning it was unable to recruit foreign students.

Who needs to be checked?

Employers need to carry out checks on all employees, workers and apprentices who started on or after 29 February 2008, whether or not they have written contracts. You do not have to check those who undertake work as genuinely self employed contractors though.

How to carry out right to work checks

Before an employee starts work you must carry out the following steps to obtain a statutory excuse against a civil penalty:

STEP 1: Obtain original acceptable documents evidencing the employee’s RTW – a passport for those from the UK, European Economic Area (EEA) or Switzerland, or otherwise a visa, biometric residence permit or other immigration status document.   

STEP 2: Check these are genuine and not tampered with, any expiry dates have not lapsed, the photo and dates are consistent with the employee and whether there are any restrictions on the work they can do. Before employing students you must obtain a copy of the academic term and vacation dates.

STEP 3: Take a clear copy of each document and keep this electronically or in hardcopy. For passports you must keep pages with the document expiry date, nationality, permission to work and other details, for other documents you must copy the full document (including both sides of a biometric residence permit).  

CHECK WHEN PERMISSION EXPIRES: For employees who started on or after 29 February 2008 and who have temporary permission to work and live in the UK, the recent changes to the code of practice mean that you no longer have to check their right to work every 12 months, but you do need to check this when their permission expires. For example, if someone who started with you in 2009 is on a Tier 2 dependant visa that expires on 16 July 2014, you must check their right to work on this date. If they have applied for a new visa and you are reasonably satisfied of this, then your statutory excuse is extended for 28 days, during which time you must contact the Employer Checking Service and receive a positive verification notice confirming that their right to work is continuing. If you receive such a notice you will have a statutory excuse for a further 6 months. When they receive their new visa you will need to check and take a copy of this.

Top tips on dealing with your right to work duties

In light of the substantial increase in the penalties for employing workers illegally, it is vital that employers have robust internal procedures in place for carrying out right to work checks. Here are our top tips:

  • Check your offer letter - ensure that it is a clear condition of a prospective employee’s employment that they must have the right to work in the UK – set this out in your offer letter and remind them to bring ID with them on their first day.
  • Have a clear process - make sure that right to work checks are part of your induction process. Don’t let a new starter start work without bringing in their ID.
  • Diarise, diarise, diarise – for employees with limited permission to work in the UK who started from 29 February 2009, you need to check their right to work when their visa expires. You need to have a foolproof system that reminds you when to carry out this repeat check, such as a spreadsheet of all employees on visas and their visa expiry dates in expiry date order. Don’t rely on one source for reminders in case there is a system glitch, you could be accidentally employing someone illegally.
  • Ensure the employee complies – have a right to work policy that makes it clear that it is the employee’s responsibility to keep you informed of any changes to their right to work and failure to keep you informed or provide evidence of permission will be treated as a disciplinary issue.
  • Understanding and accountability are key - make sure whoever is responsible for carrying out the checks knows what is expected of them and give them training on the process so they understand what they need to do and why.
  • Test your systems – carry out yearly/six monthly audits on your HR files to check that you are complying with the UKVI requirements. UKVI can visit your premises unannounced at any time so mock audits allow you to pick up on and correct any mistakes before it is too late!
Clarkslegal, specialist Immigration lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Immigration matter please contact Clarkslegal's immigration team by email at immigration@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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