Since 12 July 2016, UK employers are obliged to carry out document checks on all workers when they are first recruited or engaged. Otherwise, the employer faces fines of up to £20,000 per individual employed without the right to work. The UKVI may seek to leverage the threat of penalty by forcing an employer to help deport illegal workers (see the case of Byron Burger). However, an employer that has carried out all the correct right to work checks will have a ‘statutory excuse’ against the imposition of a civil penalty. We provide HR advice on how best to comply with the Immigration Act 2016 and how to guard against UKVI penalties.Since the enactment of the Immigration Act 2016 UK employers have to carry out document checks on all workers or can face penalties.
HR Advice: Conducting an adequate Right to Work check
HR teams should not hesitate to ask prospective staff for details of their right to work in the UK. There is little danger of falling foul of any anti-discrimination laws by making this request and it should be made as soon as is practicable, perhaps as early as the first shortlist stage.
Human resources managers should positively be encouraged to ask if the applicant is allowed to work in the UK and can request a copy of the passport to verify a visa endorsement. An alternative document for verification purposes is a Biometric Residence Permit (BRP) which will state details of the right to work on it’s face.
HR Immigration Law Advice: Checking Candidates’ Right to Work (indefinite leave versus time-limited working rights) and Keeping Records
The employer should check the original of a British passport, Permanent Residence Card (PRC) or a Biometric Residence Permit (BRP) and ensure it states the candidate has indefinite leave. Most UK candidates fall into this category.
If the candidate has indefinite leave, then the candidate has effectively demonstrated they have an indefinite right to work in the UK without restriction.
The employer must keep a proper copy of this evidence, ideally certified, so that the employer effectively has proof of conducting appropriate and compliant HR checks.
The validity of the so-called ‘statutory excuse’ that is thereby created by the maintenance of records lasts for the duration of the employee’s employment.
Candidates that do not have indefinite leave must be checked again before the expiry of their present right to work. The candidate’s passport or BRP will reveal a time-limited right to work so the candidate will only be legally employable until the expiry of the visa.
It is imperative that HR teams introduce procedures to diarise these dates and/or offer fixed-term employment to the expiry of that date only and block continued employment without further right to work checks.
UKVI Home Office: Positive and Negative Verification Notices
In exceptional circumstances, an employer may be required to obtain a Positive Verification Notice from the Home Office’s Employer Checking Service if the candidate produces one of the following documents or explanations on a right to work check:
- A Certificate of Application less than 6 months old which indicates that work is permitted; or
- An Application Registration Card stating that the holder is permitted to undertake the work in question; or
- No acceptable documents because they have an outstanding application with the Home Office or appeal/administrative review against the Home Office.
A Home Office Positive Verification Notice (which we can apply to obtain) will give the employer a right to check validity for 6 months.
If the employer receives a Negative Verification Notice, it means the employee is not permitted to work. Employers risk fines and censure if they employ such a candidate.
The employee’s permission to make the checks will be necessary to start the process. The Home Office will need the employee’s full name, date of birth, nationality, job title, hours worked per week and home address. HR managers will need to request employee’s original Application Registration Card or a Certificate of Application.
UKVI Civil Penalty Notices & Criminal Prosecutions
Employers will be guilty of an offence if they employ a non-EEA national who does not have right to work in the UK if they have “reasonable cause to believe that the employee is disqualified from employment” because of their immigration status.
Employers convicted of this offence may face a large financial penalty, and/or a maximum prison sentence of five years (an increase from the previous maximum of two years).
The responsibility lies with employers and it is therefore vital that HR teams are trained to ask the right questions, record the right information, diarise the appropriate dates and also to spot fraudulent and false documents.
Expert HR Business Immigration Advice on Right to Work Checks & UKVI Penalty Appeals / Challenges
We provide robust defence counsel to those facing prosecution or large penalties, which we have experience of reducing significantly by applying appropriate mitigation representations and challenges to UKVI. If necessary we can also lodge a formal appeal.
Our business immigration lawyers also provide legal updates and right to check training to HR teams to help them understand the importance of their role in the new immigration regime.
To contact one of our Immigration Solicitors or Immigration Barristers please complete our legal case assessment form and we will get in touch or call us now on 0845 8622 529 for a telephone case assessment.
If you wish to consider your options, please call our Immigration Team so we can assess your matter and if necessary advise you of the next steps you should take in a consultation.
We are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients. We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.
If you need professional legal advice about Right to work checks please contact us on 02071830570. You can also reach us and request a call back via our contact form.