The Home Office can impose significant penalties on employers that employ workers who do not hold valid immigration permission. As a result of Brexit, these sanctions now also cover EU workers. New guidance on right to work checks has recently been published by the Home Office.
Why has the guidance been updated?
Workers from the EU, EEA and Switzerland (who we will refer to as EEA citizens) became subject to UK immigration control on 1 January 2021. This means that employers must ensure that valid right to work checks also cover this group in order to be able to establish a statutory excuse under section 15 of the Immigration, Asylum and Nationality Act 2006.
Establishing a statutory excuse means that the employer will avoid a civil penalty (of up to £20,000) if it transpires that the worker provided a false document during the initial, or any follow-up, right to work check.
The grace period and EUSS applications
A grace period is in place between the UK and EU until 30 June 2021. During this time, eligible EEA citizens can make applications to remain in the UK under the EU Settlement Scheme (EUSS).
Because the cut-off date for EUSS applications is not until 30 June 2021, the Home Office recognises that it is impossible for employers to be certain as to the immigration status of their EEA workforce.
What checks need to be conducted?
Updated guidance, ‘An employer’s guide to right to work checks: 17 March 2021‘, along with a new factsheet have been published.
It remains the case that in relation to EEA workers, during the grace period employers are only required to check that the individual has a passport or national ID card. Crucially, the new documentation also confirms that employers do not need to undertake retrospective checks once the grace period ends on 30 June 2021. It confirms that they may do so to ‘ensure the stability of their workforce’.
What practical steps should employers take?
Employers should ensure that right to work checks are being conducted in a way that is fully compliant with the guidance. Only full compliance, both in relation to the initial check and regarding any follow-up checks, where required, guarantees that an employer will be able to rely on a statutory excuse in the event that a civil penalty notice is issued. These can be issued if the Home Office alleges that an employee does not have permission to work in the UK.
ABC Ltd employed a person claiming to be a French national on 2 February 2021. At the time, the individual produced a ‘French passport’. Whilst this was seen by an HR manager, a copy was never taken. The Home Office investigate the company in September 2021 regarding allegations of illegal working. They have evidence that the individual is not an EEA national at all but had entered the UK with a visit visa in 2019 and had never left or sought to regularise his status. He had bought a fake passport. The company is issued with a civil penalty. This would have been avoided had the HR manager conducted a right to work check that fully complied with the steps set out in the guidance.
XYZ Ltd employed an Italian national on 1 March 2021. The individual sent a scanned copy of an Italian ID document to the business owner, but the original was never seen and the full right to work checks were never conducted. In December 2021, the Home Office informs the business owner that the individual entered the UK on 20 February 2021 and had never made an application under the EUSS. In fact, she would not have been eligible for such status in any event as she had not come to the UK before 31 December 2020. It remains to be seen if, in such cases, the Home Office will impose civil penalties or provide warnings initially – we would hope they would take the second approach. Such a scenario would have been avoided had the business owner conducted a right to work check that fully complied with the steps set out in the guidance.
If an employer has concerns that checks may not have been conducted in a fully compliant manner, they may wish to carry out retrospective checks to ensure that the individual does have the right to work in the UK. A civil penalty can only be upheld if the individual does not have the right to work – it cannot be imposed purely because a compliant check was not conducted.
It is important that all checks, including retrospective ones, are performed in a non-discriminatory manner and that employment legislation is followed. If, as a result of a retrospective check, the employer discovers that a worker does not have permission to work, they will not have a statutory excuse, but it will enable them to consider if the employment needs to be brought to an end. Such a decision should be made promptly because it is a criminal offence to continue to employ a person if the employer knows they do not have permission to work in the UK.
We would strongly advise that legal advice is obtained before conducting further checks and before taking any resulting action.
Can criminal sanctions be applied?
Criminal sanctions can be applied to both employers and workers in certain scenarios.
The Home Office has stated in the factsheet referred to above that the ‘criminal offence of employing an illegal worker is generally reserved for the most serious cases of non-compliance with the Right to Work scheme‘.
Typically, the Home Office will only initiate prosecutions in cases involving extremely serious and damaging illegal working arrangements, for example, where people are trafficked to the UK for work purposes.
Are sponsor licence holders required to perform Right to Work checks?
Yes. Sponsors are required to help the Home Office to prevent abuse of the immigration system and comply with the Home Office’s guidance on illegal working, including conducting valid right to work checks. These are part of the sponsor duties.
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