Right to Work Checks
All employers in the UK are under a legal duty to ensure that their employees have valid immigration status in the UK giving them the right to work. Employers can be fined up to £20,000 per unlawful worker, and can also be liable for criminal prosecution if it is deemed they had “reasonable cause to believe” that a person they employed did not have the right to work in the UK. The Home Office can conduct inspections without warning and will request documents evidencing each employee’s right to work.
An employer will be protected from a civil penalty and prosecution if they can show that they have undertaken a valid right to work check. Initial right to work checks must always be carried out before the employment begins. Where an employee’s right to work is “time-limited” by their visa, follow up checks must be undertaken following the same process to establish that the employee continues to have the right to work.
Employers must always check the authenticity of original documents to make sure the person presenting them is the named individual and that the documents have not been tampered with. Photocopies or scans of a document will not be sufficient. Whilst employers are not expected to be experts in detecting forged documents, if it is reasonably apparent that the document is false or fraudulent in some way the employer will not benefit from a statutory excuse.
The process is straightforward when employing British citizens, where acceptable documents are a British passport or a UK issued birth certificate and confirmation of their National Insurance number.
In the case of EU nationals, employers are able to accept a valid national passport or national ID card as evidence of the right to work. This will continue to be the case until at least 31 December 2020. EU, EEA or Swiss citizens and their family members who are living in the UK before this date will need to apply to the EU Settlement Scheme to continue living in the UK after the end of the transitional period.
It is planned that a new Immigration system will apply to both EU and non-EU nationals arriving in the UK after 1 January 2021, and the first stage of this has been announced in a recent policy statement and after 1 January 2021, right to work checks will need to be carried out on EU nationals without Settled or Pre-Settled Status in the same way that apply now to non-EU nationals.
The situation can become complicated when dealing with the non-EU family members of EU nationals. Under the EEA regulations that govern freedom of movement, their right to live and work in the UK is primarily based on their relationship with the EU national exercising treaty rights, and does not depend on the issuing of a physical residence card. It might be the case that a person cannot provide their residence card as evidence of their right to work, but this does not mean that they do not legally have the right to work.
Employers can use the Home Office’s Employer Checking Service to check a prospective employee’s right to work in the UK; however as discussed in Badara v Pulse Healthcare Limited UKEAT/0210/18, employers should be wary of relying on the results as there are limitations and the service can only verify non-EEA nationals who hold biometric residence cards and EU nationals granted status under the Settled Status scheme.
An employer will have to obtain a positive verification notice from the Home Office where an employee or prospective employee has an outstanding immigration application which was submitted prior to the expiry of their existing visa, or where they have a pending appeal or administrative review. The employer must have the consent of the individual before undertaking the check which, if positive, will be valid for six months before it must be repeated.
Barlow Robbins advises recruitment agencies and employers on all aspects of right to work checks, civil penalty notices and employing foreign workers. If you would like more information about how we can help protect your business, please contact our expert team for a private consultation.