In May 2014, the government amended the regulations governing right to work (‘RTW’) checks in the UK. Since this date, in order to establish a statutory excuse (a defence against a potential illegal working penalty), endorsements, including those for Indefinite Leave to Remain (‘ILR’), are required to be in current passports. We consider what this means in practice.
The amended legislation
Section 35 of the Immigration Act 2016 amended the offence of ‘knowingly employing an illegal worker’ to include employers who have ‘reasonable cause to believe’ that an employee is disqualified from employment.
We therefore recommend that employers carefully review the latest Home Office guidance to ensure that they are able to establish a statutory excuse against liability for a civil penalty should they be found to be employing a person who is not lawfully entitled to work in the UK.
Considering that the maximum civil penalty currently stands at £20,000 per illegal worker, being able to establish a statutory excuse is vital for many employers.
List A and ILR endorsements
Employers may have noticed that point 6 of List A clearly states that ‘a current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK can be provided’.
In the past, however, employers were able to accept ILR endorsements in expired passports.
Despite the change to List A, the Home Office has failed to update other relevant guidance. For example, the guidance entitled ‘Full guide for employers on preventing illegal working in the UK’ still states that if a person does not have a current passport or travel document an expired version can be accepted as evidence of their right to remain and work in the UK.
With conflicting sources of information available, it is easy to see how some employers could make mistakes that could potentially lead to the loss of a statutory excuse and exposure to a civil penalty.
The Home Office’s acknowledgment of the change
In order to find a specific reference from the Home Office acknowledging the change, employers would have to search through the Home Office document entitled ‘Frequently asked questions about the illegal working civil penalty scheme’ here. This states at question 17:
‘Why does an ILR stamp have to be in a current passport?
In May 2014, the Government amended the regulations governing right to work checks to prevent illegal working in the UK…
Since May 2014, endorsements, including those for indefinite leave to remain (ILR) are therefore required to be in documents which have not expired. This is to enable the Home Office to remove a raft of insecure immigration documents and replace them with secure Biometric Residence Permits (BRPs). This in turn will assist the holders of BRPs to demonstrate their entitlements to work, benefits and public services more easily.
Anyone whose documents are no longer valid may make an application to the Home Office to upgrade their older form of immigration documentation.
The individual does not have to wait until the outcome of the application before being able to demonstrate a right to work. You may contact the Home Office’s Employer Checking Service to verify that someone has made an application for a BRP and has the right to work, so employment can commence without delay.’
As best practice, we recommend that employers ask those who have ILR endorsed into an expired passport to make a No Time Limit application in order to transfer the vignette onto a BRP.
This would then enable the individual to clearly demonstrate to their employer, in a manner specified in List A, that they have the right to work in the UK and would enable the employer to maintain a statutory excuse.
Notwithstanding the changes outlined above, employers should be aware that holders of expired passports containing ILR vignettes generally retain the right to work in the UK. It is therefore important to exercise caution before terminating employment due to the failure by an employee to produce evidence specified by the Home Office. The dilemmas faced in this regard by employers were clearly highlighted in the relatively recent case of Baker v Abellio.
How we can help
If you require legal advice on this specific issue, or you would like guidance or a health check to ensure that your organisation is protected from illegal working sanctions, please contact us.