An employer’s guide to right to work checks
On 12 July 2016 the Home Office updated ‘An Employer’s Guide to Right to Work Checks’, which applies to checks carried out from 16 May 2014 to establish or retain an excuse against a liability for a civil penalty for employing a person who is not permitted to work.
As before, the guidance is intended to be read alongside other Home Office guidance and Codes of Practice currently in existence such as those regarding the administration of the civil penalty scheme and acceptable right to work documents.
Illegal working offences
The most significant changes to the current law outlined in the updated right to work checks guidance are in relation to illegal working offences. On 12 July 2016 sections 34 and 35 of the Immigration Act 2016 were commenced. Section 34 inserts a new offence of illegal working into the Immigration Act 1971 (the ‘1971 Act’). Section 35 amends section 21 of the Immigration, Asylum and Nationality Act 2006 (the ‘2006 Act’), which sets out the criminal offence of employing an illegal worker.
Under section 24B of the 1971 Act a person commits the offence of illegal working if he is:
- Subject to immigration control and works when disqualified from doing so by reason of his immigration status, and
- At the time, he knows or has reasonable cause to believe that he is disqualified from working by reason of his immigration status
A person is disqualified by reason of immigration status if he has not been granted leave to enter or remain in the UK or his leave is invalid, or has ceased to have effect, or is subject to a condition preventing work of that kind. The offence is intended to cover all types of work and allows wages from illegal working to be seized as the proceeds of crime. In England and Wales, the offence carries a maximum penalty of six months imprisonment and/or an unlimited fine.
Under section 21 of the 2006 Act, an employer commits a criminal offence if he employs an illegal worker and knows or has reasonable cause to believe that the person has no right to do the work in question. Employers can no longer evade prosecution where the investigating agency cannot prove that the employer knew that the employee had no permission to work.
The amended offence enables employers to be prosecuted where they have reasonable cause to believe that the employee could not undertake the employment, even where they have perhaps deliberately ignored information or circumstances that would have caused the employer to know that the employee lacked permission to work. The maximum sentence on indictment for this offence has been increased and is now up to five years imprisonment and/or an unlimited fine.
Right to work checks
Much of the guidance remains unaltered, however the additions and amendments made can be summarised as follows:
- The guidance makes clear that the employer remains liable for the civil penalty even if the actual check is performed by a member of its staff and moreover employers are unable to establish a statutory excuse when the check is performed by a third party, i.e. an independent payroll company.
- As before, liability for a civil penalty could also affect an employer’s ability to sponsor migrants in the future including those under Tier 2 and now also under Tier 5. The guidance is clear that if an employee is undertaking a role which is different from that for which the certificate of sponsorship was issued and permission was granted, the employee is working illegally.
- The updated guidance also makes reference to ‘Guidance on Examining Identity Documents’, which sets out the security features on identity documents and how to detect forgeries. This was also updated on 12 July 2016 and will no doubt be of use to those carrying out right to work checks. This guidance can be accessed by clicking here.
- The guidance is clear that there is no liability where an employer does not employ a prospective employee who presents a false document or a genuine document that does not belong to them.
- The updated guidance clarifies that since July 2015, Biometric Residence Permits (BRPs) are the only evidence of lawful residence currently issued by the Home Office to most non-EEA nationals and their dependents granted permission to remain in the UK for more than six months.
- In relation to students, it is highlighted that employers may be liable for a civil penalty if a Tier 4 student employee exceeds the maximum period they are permitted to work during term time in any given period of seven days. Thus the careful checking of vacation periods and term times for these student employees is of the utmost importance.
With regard to retaining evidence of checks, the updated guidance states that an employer may be liable for a civil penalty if the date that the check was performed is not recorded. Where dates are inserted on copy documents, the fact that this was the date that the check was undertaken must be recorded. A date alone does not confirm the actual date that the check was undertaken. This applies to both digital and hard copy records. We would advise using the wording recommended in the guidance as follows, ‘the date on which this right to work check was made: [date]’.
If you would like further information or advice, please get in touch with:
T. 020 7227 6758
T. 020 7227 7455
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.