Right to Work
We work with employers both large and small across all sectors to provide reassurance against the risk of employing people who are not entitled to work. Our staff are highly experienced ex-UK Border Agency officers who have worked extensively in the field of immigration enforcement dealing with illegal working and know what the UKBA are looking for during enforcement visits. Our services include advice on recruitment processes, audits of existing staff and training for longer term solutions.
- checking entitlement to work
- Monitoring existing employees
- Penalities and problems
- How we can help
Checking Entitlement to Work
If you are an employer in the UK, whether you employ one person or thousands of workers; whether you are in the private or public sector; you must ensure that your employees have the right to work. If you fail to do so and are found to be employing a person illegally, you may face a penalty of up to £10,000 for each worker employed illegally or prosecution with an unlimited fine and up to 2 years imprisonment if you knowingly employ someone illegally.
In principle, the Rules are quite straightforward. The UKBA produces Guidance which includes two lists (A and B) which set out the documents (or combination of documents) that a prospective employee must produce to demonstrate right to work. This requirement applies to all workers including those who claim to be UK or EEA nationals as until they provide the relevant documents, there is no evidence that they have the entitlement they are claiming. Checking the documents of all workers also avoids the possibility of accusations of discrimination.
You are not, however, expected to be an expert on immigration law but you will only have an “excuse” against a penalty if you have followed the steps set out in the UKBA Guidance. You will only have an excuse if you correctly carry out checks on acceptable documents before a person starts working for you.
You must ask for and be given:
Either one of the single documents, or two of the documents in the specified combinations given, from List A; OR one of the single documents, or two of the documents in the specified combinations given, from List B. You must only accept original documents.
In certain circumstances, for example when a prospective employees claim that they have a right to work but their passport is with the Home Office, the UKBA requires that you seek confirmation that a person has the right to work in the UK to get, and then keep, an excuse against payment of a civil penalty. This is done via the Employer Checking Service.
Click here for the form to request a check.
Once completed, email the form to: email@example.com or call the UKBA Sponsorship and Employers’ Helpline on 0300 123 4699 and they will advise you on what action to take.
The role of the Employer Checking Service is to verify a person’s right to work in the UK where an individual has:
- an outstanding application or appeal with us which was made at the correct time;
- presented an Application Registration Card (ARC) which states that the holder is allowed to work; or
- presented a Certificate of Application issued to or for a family member of an EEA or Swiss national which states that the holder is allowed to work.
In all these cases you must receive positive confirmation of a person’s right to work from the Employer Checking Service before you employ them.
You must also keep copies of the documents relating to the check and the confirmation of right to work letter you receive from the UKBA to get and then keep an excuse for up to 12 months from the date of your confirmation letter.
You must also carry out repeat confirmation checks using the checking service at least once every 12 months. You must receive positive confirmation of the person’s continued right to work to keep your excuse.
You must take all reasonable steps to check that the document is genuine and to satisfy yourself that the holder is the person named in the document. You should also check that the document allows them to do the work in question.
For each document given to you, you must:
- check any photographs are consistent with the appearance of the person; and
- check any dates of birth listed are consistent across documents and that you are satisfied that these match up with the appearance of the person; and
- check that the expiry dates of any limited leave to enter or remain in the UK have not passed; and
- check any UK government endorsements (Biometric Residence Permits, stamps, stickers, visas) to see if the person is able to do, or can continue to do, the type of work you are offering; and
- satisfy yourself that the documents are genuine, have not been tampered with and belong to the holder; and
- if you are given two documents which have different names, ask them for a further document to explain the reason for this. The further document could, for example, be a marriage certificate or a divorce decree absolute, a deed poll or statutory declaration.
If you have carried out these document checks and found that the person you are looking to employ is not allowed to work, then you are allowed to refuse employment to them. It is up to the person seeking employment to prove to you that they have the right to do the work you are offering.
If a person has a restriction on the type of work they can do and, or, the amount of hours they can work, then you should make sure that you do not employ them in breach of these work conditions.
If you decide to employ the person, you must take a copy of the relevant page or pages of the document, in a format which cannot later be altered, for example, a photocopy or scan (where an electronic copy is made of a document, it must be made using a non-rewritable format, such as CD-R).In the case of a passport or other travel document, the following parts must be photocopied or scanned:
- the document’s front cover and any page containing the holder’s personal details. In particular, you should copy any page that provides details of nationality, their photograph, date of birth, signature, date of expiry or biometric details; and
- any page containing UK Government endorsements showing that the holder has permission to be in the UK and has the right to carry out the work in question.
You must copy other documents in full; this includes both sides of a Biometric Residence Permit.
We recommend that you sign and date the copies.
You must then keep a record of every document you have copied. The UKBA recommend that you keep copies of the documents securely for the duration of the person’s employment and for a further two years after they stop working for you.
Monitoring Existing Employees
In our experience, most employers nowadays are fairly familiar with the checks they need to undertake when employing a person for the first time. However, problems tend to arise after a person has been employed either because their visa expiry date is overlooked or because the company comes under new ownership and it is assumed that long standing employees are free from immigration control.
It is therefore essential that employers make repeat checks of employees who have a time limit attached to their stay and have a means of recording and monitoring visa expiry dates.
To keep your excuse you must carry out repeat document checks at least once every 12 months to check if the person continues to have the right to work for you. You will keep your excuse for up to a further 12 months from the date on which you carried out the repeat check.
Where a person’s leave to remain and right to work in the UK is due to expire within 12 months of the date of your last repeat check the UKBA recommend that you carry out a repeat check at the point of expiry to check if a person continues to have the right to work for you lawfully. Although this is only a recommendation, allowing a person whose visa has expired to continue working for you runs the risk that you could be accused of knowingly employing a person as an illegal migrant worker (because you had checked and knew that their visa was due to expire)which could remove your excuse.
If, when you recheck an employee’s documents, they provide you with documents from List A, no further checks are necessary and you will keep your excuse for the remaining duration of the person’s employment with you. If at the time of the checks, a person has an outstanding application with the UKBA or appeal to extend their leave in the UK, then you should contact the Employer Checking Service. The Service will confirm that the person has, or continues to have, the right to work here. This confirmation is required should you wish to get, and then keep an excuse against payment of a civil penalty. If a person has a time limit on their right to work, you will only keep your excuse if you carry out repeat document checks at least once every 12 months.
Penalities and Problems
In September 2009, the then Attorney general was fined £5000 for employing a domestic worker illegally after having failed to take and retain copies of her documents. In November 2012 Tesco was fined £115,000 for employing students in excess of the number of hours they were entitled to work in accordance with their visas. During the 3 month period from July 2012, the UKBA imposed penalities totalling £2.6m in respect of 305 illegal workers detected. In a speech made by the Prime Minister on 25th March 2013 - http://www.number10.gov.uk/news/david-camerons-immigration-speech/ - David Cameron stated that the Government would be doubling the fines levied against employers who employ illegal workers.
But it is not the fine alone that causes damage. If a company is found to be employing illegal workers, it can also affect the company’s licence under Tier 2 of the Points Based System. And for some companies, this could in turn result in the loss of some of the most senior people in the company if they were sponsored employee. We saw an example in 2012 of a major London University losing its Tier 4 licence and there is no reason to suggest that the Home Office would not be bold enough to take similar steps against a large company.
The Government is also committed to “naming and shaming” by publicising companies that employ illegal workers and such publicity can be extremely damaging to a company’s reputation.
Decentralised companies with branches or franchises are at particular risk where there is lesser, direct control over the recruitment of employees. In many cases the guidance and training provided by the parent company is minimal and managers are unclear about the rules; in others, once an employee has been recruited, managers lose sight of the employee’s immigration status over a period with the risk that they continue in employment even though their visas have expired. In a small minority of cases managers may be complicit in the employment of illegal workers.
And it is not only the direct employer that can be affected by such publicity. In 2009 Primark hit the headlines when one of its supplies was found to be employing illegal workers. Guy’s and St Thomas’ hospital and indeed the Home Office itself have similarly hit the headlines not because they themselves were employing illegal workers but because their contractors were. Unfortunately headlines about a little known contractor employing illegal workers do not sell newspapers but the involvement of a household name company does.
Large companies nowadays are increasingly seeking evidence from their suppliers and contractors that they have in place systems for checking and monitoring their employees’ right to work both in terms of their social and ethical policies and to avoid damage to their reputation.
How we can help
- HR Immigration provides a comprehensive service for employers on establishing, monitoring and checking right to work.
- Advice on individual employees and their right to work
- The development of processes and procedures relating to right to work checks and the monitoring of existing employees
- Training for employers, managers and contractors on conducting right to work checks with documentation to confirm that training has been undertaken.
- Audits of companies, branches and franchises to provide re-assurance that right to work checks are being undertaken and that workers are not being employed illegally.
- Support through our partners on improving efficiency and effectiveness in conducting right to work checks.
Contact us today for a no commitment discussion on how we can help you comply with your Right to Work responsibilities.