On 16 August 2017 The Home Office published updated Guidance on right to work checks which all employers need to be aware of.
The link to the new Guidance is here.
The Guidance replaces the previous version which was last updated in July 2016 and applies to checks required from 16 May 2014.
It is illegal to employ anyone over the age of 16 who is not allowed to work or not allowed to undertake the work in question, for example, as it breaches the conditions on their visa.
The duty to prevent illegal working applies to all employers in the UK, irrespective of size or sector. All employers have to undertake right to work checks to ensure that their staff are entitled to work in the UK.
These checks must be undertaken before employment begins to ensure that staff have the right to work from the outset. Where staff have time-limited documents, follow-up checks must be done to ensure that they continue to have the right to work.
The definition of ‘who is an employee?’ is wide and what amounts to employment is broadly interpreted by the UKVI in our experience. We have had clients caught out by those doing unpaid work experience and work trials.
The implications of not getting right to work checks correct are severe and can be civil and potentially criminal.
If an employer is found to have employed someone who does not have the right to work then they will be liable for a Civil Penalty of up to £20,000 per worker. However, it is possible to establish a statutory excuse to a Civil Penalty if it can be shown that the correct right to work checks have been carried out.
It is also possible for an employer to be prosecuted if it can be shown that they knew or had reasonable cause to believe that they were employing an illegal worker. Employers can face an unlimited fine or up to 5 years’ imprisonment.
The main changes to the previous Guidance are those reflecting rather draconian measures brought in or ramped up by the Immigration Act 2016 which include enabling an employer’s premises to be closed if they are found to employ illegal workers and criminal sanctions for employers who know or have reasonable cause to believe that they are employing an illegal worker.
The Guidance also has helpful further information on the employment of particular migrants whose rights may be unclear (and so who may be considered higher risk for employers in terms of undertaking checks) such as students and also family members of EEA nationals in Annex B.
Our advice is that all employers should undertake right to work checks consistently for anyone who does any paid or unpaid work for them in order to protect their businesses.
Our advice remains to seek specialist advice if you are unsure about your employees’ right to work, how to undertake right to work checks and if you are facing a Civil Penalty or prosecution. If you require advice on your immigration matter, please contact June Holmes on 0191 243 8164 or firstname.lastname@example.org.