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Checking a potential future employee’s right to work in the UK should be a key part of any recruitment process. Failing to carry out these checks properly can result in fines of up to £20,000 per illegal worker and potentially even prison sentences in serious cases. It can also impact on an organisation’s ability to sponsor migrant workers, which could pose practical problems given the expanded scope of sponsorship post-Brexit.
In this Insight, we look at the current steps for checking a potential employee’s right to work and how this may change in the new year.
The key purpose of a right to work check from an employer’s perspective is to secure a statutory excuse against enforcement action by the Home Office in the event that an individual has been employed illegally due to their immigration status. Provided that a check has been carried out in a manner stipulated by the Home Office, an employer will not be liable to pay a civil penalty fine that could otherwise have been imposed.
If there is no compliant right to work check on file for an employee, then there is a potential risk of Home Office enforcement action. Of course, the precise level of risk will depend on a variety of circumstances.
As per Home Office guidance; in order to obtain a statutory excuse, the check should be carried out before an individual commences employment. From a statutory excuse perspective, checking on Day 1 of employment could well be too late.
On the flip side, there is clearly a race/nationality discrimination risk if an individual’s right to work status is considered as part of a recruitment process. Right to work documents should therefore be requested as late as reasonably possible in a recruitment process. In practice, many employers check documents for all candidates at the final interview stage to ensure fairness and reduce discrimination risks.
A valid right to work check should be on file for all staff, irrespective of nationality. It would be inappropriate, for example, to only check documents of prospective employees who do not appear to be UK nationals. This would carry a clear race/nationality discrimination risk. Checks should be a feature of any recruitment process carried out.
The Home Office produces detailed guidance documents that set out exactly how checks should be conducted. Checks should be carried out in accordance with guidance that is in force at the time of the check and any updated guidance does not apply retrospectively to checks already conducted.
There are broadly 2 means by which a check can be carried out:
(i) a “manual” check where physical documents are looked at and
(ii) via an online checking service, although this is only available for certain categories of individual.
The Home Office guidance sets out detailed requirements on what types of document are valid for right to work check purposes, how the check should be carried out and how it should be recorded/retained.
There are also certain limited circumstances when a dedicated Home Office Employer Checking Service (different to the online service noted above) can be used to verify right to work in the UK – for example, if an individual does not have their visa documents due to an ongoing extension application at the point of recruitment.
At present, temporary variations to the checking process are in place due to the ongoing Covid-19 pandemic. The amended process allows documents to be checked via video call, although a follow up check in line with usual requirements will be required when the temporary measures end.
This depends on the type of documents that an employee presents to an employer. For manual checks, Home Office guidance contains 2 lists – List A (documents that confer permanent residence) and List B (documents that only confer time-limited right to work). No follow up checks are required where a List A document has been presented, but follow up checks will be required if a List B document is presented. For online checks, the service will make it clear whether permission to work in the UK is time limited and therefore if a follow up check is required. In practice, it makes sense to hold a centralised calendar of staff visa permissions and expiries so that any visa extensions and follow-up checks can be actioned in good time.
If Home Office enforcement teams deem that an individual has been employed illegally and that an organisation does not hold a valid statutory excuse, then civil penalties can be issued. At their maximum, these penalties can be £20,000 per illegal worker.
It is also a criminal offence for an organisation to employ an individual if they know or have reasonable cause to believe that the individual is working in the UK illegally. Prosecution tends only to occur in the most serious cases, but can result in 5 years’ imprisonment and/or an unlimited fine.
As well as the above, the Home Office can also take other steps that could cause significant business disruption. Business closures are possible and thereafter onerous special measures can be implemented in order to ensure ongoing compliance. Illegal worker penalties can also impact on an organisation’s ability to sponsor migrant workers, which could pose practical problems given the expanded scope of sponsorship post-Brexit. As well as these sanctions, the Home Office can also publish the identity of businesses who have had civil penalties levied against them – therefore creating possible reputational damage in addition to the financial implications.
With substantial changes to UK immigration law on the horizon, changes will inevitably follow in this area. However, changes will not be made before 30 June 2021.
The reason for this is that under the EU Settlement Scheme, those resident in the UK by 31 December 2020 will have until 30 June 2021 to actually make scheme applications. Until 30 June 2021, the current means of verifying right to work for EU/EEA/Swiss nationals by checking their passport or national ID card remain valid for statutory excuse purposes. Employers cannot insist upon seeing proof of settled or pre-settled status before this date.
The arrangements for the first half of 2021 do create a lacuna whereby until 30 June 2021 (i) an EU/EEA/Swiss national may be eligible for the Settlement Scheme, but not have acquired the relevant status yet; or more problematically (ii) EU/EEA/Swiss nationals could in theory enter the UK as visitors after 1 January 2021 and attempt to secure work illegally. It remains to be seen how real a risk (ii) is. Details of the Settlement Scheme have been widely known for a significant time and applications are free, so we may not see deliberate widespread attempts to subvert the new rules in this manner.
Given that employers should not be asking for proof of settled or pre-settled status before the end of June 2021, this could potentially pose practical problems when recruiting EU nationals between January and June 2021. Some prospective employees may volunteer this information, but others may not and it could therefore be difficult to definitively establish whether a visa will be required for individuals within this period. Whilst checking an EU/EEA/Swiss passport in the prescribed manner will provide a statutory excuse, business disruption at a later date could remain a possibility should an individual be working illegally.
Further Home Office guidance on right to work checks is expected as we get closer to June 2021. In the meantime, it will be a welcome relief for employers that the Home Office has indicated that retrospective checks for existing employees will not be required.
08 December 2020