UK: New Guidance On Checking The Right To Work And The Civil Penalty Scheme

The Home Office has published two guides to assist employers with recent changes to the UK rules on employing workers from outside the UK. These changes, which took effect on 16 May, increased the maximum penalty for employing someone who does not have the right to work in the UK to Ł20,000 and introduced revisions to the rules on documents checks.

The guides, An employer's guide to the administration of the civil penalty scheme and An employer's guide to right to work checks will be the new first point of reference for Home Office officials whenever an employer is found to have been employing workers who do not have the right to work in the UK. Carrying out document checks correctly is vital for employers who wish to establish that they have the statutory excuse which exempts them from penalties for employing illegal workers.

A summary of the changes to right to work checks is as follows:

The list of acceptable documents for right to work checks is reduced. Travel documents, work permits and general Home Office letters have been removed from the lists. All documents which contain an expiry date must now be current (except those showing that the holder is a British citizen, a citizen of the UK and Colonies having the right of abode, a national of an European Economic Area (EEA) country or Switzerland or their family members with permanent residence).

The frequency of follow-up checks for people with time-limited right to work has changed. Where a person presents a document which contains an expiry date, the follow-up check is required on the expiry of their permission to be in the UK and do the work in question. When a Certificate of Application or an Application Registration Card is presented as evidence of a right to work, or the employee has no acceptable documents because they have an outstanding application to the Home Office or an appeal against an immigration decision, the follow-up check is required 6 months after the initial check.

The acceptable documents for right to work checks set out in List B provide a statutory excuse for a limited period of time. This list has been separated into Group 1 and Group 2 to distinguish more clearly the frequency of repeat checks required depending on the document presented.

  • List B – Group 1 contains the documents for which a repeat check is required when the employee's permission to be in the UK and do the work in question expires.
  •  List B – Group 2 contains those documents for which checks are required after 6 months.

There is an extension of the statutory excuse for a maximum of 28 days after the expiry date of permission to work where the employer is reasonably satisfied that an employee has submitted an application to the Home Office or has an appeal pending against a decision on an application. During this period, an employer must contact the Employer Checking Service to verify that the employee continues to have the right to do the work in question whilst their application or appeal is being determined. If a Positive Verification Notice is received confirming that the employee has permission to do the work in question, the excuse will last for a further 6 months from the date specified in the notice. If a Negative Verification Notice is received confirming that the employee does not have permission to do the work in question, the statutory excuse will end and the employer should not employ or should cease to employ the person.

There is an extension of the grace period to 60 days for conducting right to work checks after a TUPE transfer. This is an increase from 28 days.

A record of the date on which a check was made must now be retained and the Home Office will no longer require the front page of the passport to be copied in order to establish and retain a statutory excuse.

International students who have a limited right to work are required to provide an employer with evidence of their academic term and vacation times for the duration of their studies in the UK.

A partial right to work check is no longer a mitigating factor in the calculation of a civil penalty. An employer was considered to have made a 'partial check' when, for example, they checked and copied only one of a specified combination of original documents, or failed to carry out a follow-up check.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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