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Insights 18.11.19 Author: Andreja Okamgba

Right to work checks and Brexit – what do you need to know?

Insights 18.11.2019 Author: Andreja Okamgba
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Andreja Okamgba, HR Consultant at Carter Backer Winter (CBW) outlines the main requirements of a right to work check. This article will help you assess if your processes satisfy all the requirements, or you are unknowingly leaving yourself open to the civil penalty of up to £20,000 per illegal employee.

Right to work checks

All employers in the UK have a responsibility to prevent illegal working. This is done by carrying out a right to work check which ensures that the prospective employees are allowed to work in the UK and have the correct immigration status to do so. As simple as it sounds, there are some very specific requirements for the check to be valid and provide you with a statutory excuse against the civil penalty.

The checks need to be carried out before the new employee starts work

This is a very black and white rule and doing the check first thing on an employee’s first day of employment will not be sufficient. Acceptable alternatives are to ask the successful candidate to bring the correct documents between the offer having been made and the employment start date. The check could be done as part of the final stage of the recruitment process, or, as the last resort, the employee could come in before their contractual start time on the first day and you could time stamp the document copies to prove they were taken before the employee officially started work.

The check must be done by the employer

You might be provided with a completed check by the recruitment agency or an external advisor you work with. While there is no reason you shouldn’t trust this check, you will not establish a statutory excuse against the civil penalty if the check is performed by a third party. For the check to be valid, it should always be done by someone employed by you.

You must obtain original documents

When you conduct the check, you can only accept original documents in your physical possession. You cannot check a document via a video link, and you cannot accept a photocopy.

The check must be conducted in the presence of the holder

In most cases, the new employee will be present as they will bring their documents to you. If this is not possible, they could post their documents to you, so these are in your physical possession, but attend the check via a video link.

You can only accept the specific documents as per the government guidance checklist

To ensure you are only accepting the correct documents we recommend that you always use the most up to date version of the government checklist and mark the box next to the document you have checked.

If the individual’s right to work is time limited, you must conduct a follow-up check

Documents with indefinite validity are classed as “List A” and documents with any time limitation are part of “List B” which means a follow up will be required – either on expiry of the validity or after 6 months, depending on the document. You are advised to keep a log of the checks and diarise any required follow ups with adequate lead time to obtain and check the necessary documents.

You must be able to evidence that a three-step-check has been conducted

The name refers to three steps which are Obtain – Check – Copy. To properly check the document you must check that the photographs and dates of birth are consistent across the documents and with the person’s appearance, that any inconsistencies are accounted for, the permission to work has not expired, any work restrictions are adhered to and that the documents are genuine and not obviously tampered with or fake. You must retain a copy on which the date of the check is identifiable and cannot be altered.

Brexit

No changes to the right to work checks are expected immediately after the Brexit date. From 2021, after the new immigration system comes into force, employers and other third parties will need to check that an EU citizen has a valid UK immigration status, and not just an EU passport or national identity card. This will be undertaken for new recruits only and it will not need to be done retrospectively. We expect the right to work checklist published by the Government to be updated to reflect this when the change is implemented.

Risks and sanctions

Employers don’t generally worry about employing illegal workers due to a mistaken belief that it would be quite easy to identify someone here illegally. In fact, it can be notoriously difficult to identify a fake passport, especially if you are not trained. Under the right to work checks scheme you are not expected to be able to identify these (unless they are obviously fake and/or tampered with) and you will not be penalised for missing a fake document provided that you checked it correctly.

  • If you are found to be employing someone illegally and you have not carried out the prescribed checks, you may face sanctions including:
  • A civil penalty of up to £20,000 per illegal worker
  • In serious cases, a criminal conviction carrying a prison sentence of up to 5 years and an unlimited fine
  • Closure of the business and a compliance order issued by the court
  • Disqualification as a director
  • Not being able to sponsor migrants
  • Seizure of earnings made as a result of illegal working
  • Review and possible revocation of a licence in the alcohol and late-night refreshment sector and the private hire vehicle and taxi sector

It is therefore very important to ensure your process is fully compliant with the requirements and will provide you with the statutory excuse should you ever need it.

How can we help?

Get in touch for help reviewing and improving your process to ensure you are fully compliant and don’t fall into the many traps the numerous requirements set for employers. We are also able to advise on a range of other HR and Immigration matters.