Right to Work Checks – An Update

Background

All employers, irrespective of size or sector, are required to prevent the employment of illegal workers. They should fulfil this duty by carrying out a simple 3-stage check to confirm that a potential employee is entitled to work in the UK:

  1. Obtain the individual's original documents as specified in Annex A of the guidance;
  2. Check the validity of the documents in the presence of the holder; and
  3. Make and retain a clear copy, and make a record of the date of the check.

You should conduct right to work checks on all potential employees.

Changes

In addition to the above, note that the most significant changes relate to:

1. Those who state they have a right to work as a non-EEA family member of an EEA national

Non-EEA nationals who have an enforceable right to work in the UK, either through a direct family link to an EEA national or a derivative right of residence are not required to register with the Home Office. In such cases a non-EEA national can provide evidence of their right to work without providing documents specified in Annex A. However, an employer does not establish a statutory excuse against a penalty should the individual be found to be working illegally.

2. Voluntary work and being a volunteer

Individuals who have been granted immigration permission to stay in the UK are permitted to volunteer, but not to carry out 'voluntary work'. If there is an obligation to perform work, and some reward for doing so, this is likely to constitute 'voluntary work'. As the legal distinction between volunteering and voluntary work is complex, employers should contact their immigration advisor before allowing an individual to conduct any voluntary work.

3. Self-employed and contractors

The amended guidance advises employers to check the right to work documents of individuals who are self-employed. Employers should also ensure that, in respect of any contractors who may be working for them, they conduct the correct right to work checks on people that they employ.

4. The employment of international students

UKVI have further clarified that in addition to an immigration status document, one of the following forms of additional evidence must be obtained to form a statutory defence:

- A printout from the student’s education institution’s website or other material published by the institution setting out its timetable for the student’s course of study;

- A copy of a letter or email addressed to the student from their education institution confirming term time dates for the student’s course; or

- A letter addressed to the employer from the education institution confirming the term time dates for the student’s course.

5. Illegal working measures introduced by the Immigration Act 2016 (Closure Notices and Compliance Orders, and immigration checks in the licensing regimes for taxis and private hire vehicles and alcohol and late night refreshment)

Closure Notices and Compliance Orders are sanctions which can be imposed against an employer where illegal working is found and where an employer has previously failed to comply with illegal working legislation. If a Closure Notice is issued, the business' premises will be closed for a limited time. Where a Compliance Order is issued, special conditions are placed on the employer to support compliance with its duties in respect of right to work checks and preventing the employment of illegal workers.

Licences will not be issued to those who break the UK’s immigration laws, and may be revoked where an existing licence holder commits immigration crime or receives a civil penalty for employing illegal workers.

6. Application Registration Cards (ARC)

ARCs are issued to asylum applicants to demonstrate that they have made an asylum claim. From July 2017, all new ARCs were updated to include a security feature, such as biometric image and an expiry date. All ARCs issued prior to that date are still valid until 2019 (it is expected that an exact date will be provided in due course). They can provide a statutory excuse for 6 months provided that an employer also obtains a Positive Verification Notice via the Employer Checking Service.

For further information please contact Gareth Walls or Jenny Moore or a member of our Employment & Incentives Team (NI).

Date Published: 2 October 2017