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: