Can a Business Continue to Sponsor a Worker if their Employee Loses their Right to Work in the UK?
It is hard for UK businesses to recruit and retain staff because of the UK skills shortage. That’s why many UK businesses are applying for sponsor licences so they can recruit and sponsor overseas migrant workers on skilled worker visas or other types of work visas, such as the senior or specialist worker visa.
In this article, our immigration solicitors answer your questions about whether a business can continue to sponsor an employee if the sponsored worker loses their right to work in the UK.
UK Online and London-Based Immigration Solicitors and Sponsorship Licence Lawyers
Right-to-work law applies to all employees of UK businesses. That means your company must carry out a right-to-work check before you employ any new member of staff. That includes job applicants who are British citizens, who hold indefinite leave to remain status, who hold pre-settled status or settled status under the EU Settlement Scheme, or those in the UK on work visas, family visas or student or other types of limited UK entry clearance.
If a person is found to not have the right to work in the UK, then they should not start their employment with your business. If they do start their employment, or if you don’t carry out a right-to-work check correctly, your company will be in breach of illegal working legislation. The job applicant will also be in breach of the law.
Once you have successfully completed a right-to-work check on an employee who is a British citizen or who has indefinite leave to remain or settled status then you don’t need to repeat the right-to-work check as your employee can't lose their right to work, or is unlikely to do so. For example, an employee with indefinite leave to remain would only lose their ILR if they were absent from the UK for over 2 years.
Any employee who has limited leave to remain in the UK could lose their right to work, whether or not the employment is sponsored under a skilled worker visa or other sponsored route, such as the health and care worker visa or senior or specialist worker visa.
Employees with limited leave and right-to-work checks
If an employee has limited leave to remain then ongoing right-to-work checks need to be carried out to ascertain if the employee still has immigration status and has the right to work in the UK.
The frequency of the required checks depends on the length of the worker’s visa. Your business can't ignore the need for a second right to work check if the employee is a sponsored worker and you have allocated them a new certificate of sponsorship so they can apply for a new skilled worker visa. Whilst it may be obvious that the worker will have applied for their new visa, or has got their visa, the right-to-work check still needs to be recorded on the employee’s HR file.
Why does an employee’s right to work end?
If you are in business and have recruited a worker from overseas on a work visa, or have employed a student on a part-time basis whilst they are in the UK on a student visa, it isn’t unreasonable to assume that a satisfactory employment relationship between employer and employee should continue until ended, by appropriate notice, by either party. That isn’t the case when the employee is in the UK with limited leave to remain. That’s because whatever the terms of your verbal agreement, or whatever is said in the contract of employment, it is illegal for an employee to work for your business and illegal for your company to employ them.
Examples of limited leave to remain and limited right to work include:
- A work visa or other type of visa has expired
- The visa has been curtailed. For example, a person in the UK on a spouse visa and their relationship has ended
- A worker from the EU who was living and working in the UK before 31 December 2020 but who did not apply for pre-settled status or settled status under the EU Settlement Scheme and who doesn’t have a pending application or a reason for a delayed application
- The business has not renewed its sponsor licence and an employee only has a right to work in the UK under their visa conditions if they are employed by an employer with a valid sponsor licence
- The company has been taken over by a new firm and the employees have been transferred to the new company but the new company does not have a sponsor licence to sponsor skilled worker visa holders
Penalties for not complying with illegal working legislation
If your business does not carry out a first or a renewal right-to-work check or does not carry the checks out in accordance with the regulations applicable at the time of the check, your business faces a civil fine. The maximum fine is £20,000 but that is per breach so the financial consequences can be massive if you have employed illegal workers or failed to carry out your right-to-work checks or dodged your responsibilities under legislation designed to prevent illegal working. For the most serious cases, there is also the potential for a criminal prosecution, with a maximum 5-year sentence.
However, Sponsorship Licence lawyers also warn that you risk the suspension or revocation of your sponsor licence. The revocation of your sponsor licence is serious because it means your business will lose all its sponsored staff as without a sponsor licence the firm cannot sponsor the employees and they, therefore, do not have the right to work in your business. The issues are compounded by the Home Office imposing a cooling-off period that prevents your company from applying for a new sponsor licence until the end of the cooling-off period.
Reasonable cause to believe
If your business has reasonable cause to believe that an employee no longer has the right to work in the UK but you continue to employ the worker then you could face civil or criminal penalties. Therefore, ignoring the carrying out of repeat right-to-work checks for staff who have limited leave to remain, or who are sponsored by your business, is not an option that will prevent civil or criminal consequences or that will prevent the Home Office from deciding to suspend or revoke your sponsor licence.
Employment law advice for sponsor licence holders
When you start reading about the risk of civil or criminal penalties or the potential for your sponsor licence to be revoked or suspended, your immediate reaction may understandably be to be hypervigilant about the prevention of illegal working in your workplace and to sack any sponsored employee or worker with limited leave to remain when you have suspicions about whether they continue to have a right to work in the UK. That approach could result in your business facing significant employment law problems.
Firstly, the need for repeat right-to-work checks should be carefully explained in the employee induction and ongoing appraisal process so workers, or a section of your workforce, do not mistakenly believe that they are being targeted for these right-to-work checks because of discriminatory work practices when the reality is that you are legally obliged to conduct repeat right to work checks on some but not all of your employees.
Secondly, you need to have systems in place to record which employees require repeat right-to-work checks so the process occurs seamlessly and is hassle-free for both the HR department and the employee. If there are redundancy talks or disciplinary issues, the repeat right-to-work check should be conducted separately from those discussions.
Thirdly, if an employee may have lost their right to work it is important to act quickly but carefully. That means taking business immigration and employment law legal advice to reduce the risk of consequences for your sponsor licence whilst at the same time minimising the risk of a potential discrimination or unfair dismissal claim. You will need to fully and fairly investigate the circumstances of why there is a concern that the worker no longer has a right to work in the UK and see if the issue can be resolved. The investigation process should be carefully recorded and processes followed. For example, the employee may have cut things fine with timings, but if they now have a work visa application pending with the Home Office, and you can get confirmation of that by doing an online check, then that may resolve matters.
You should not think that putting your employee on garden leave or suspending them gives you the luxury of time as it doesn’t. That’s because a suspended or absent employee is still technically an employee with all the consequences that flow from that status if they no longer have the right to legally work in the UK.
Every right-to-work situation with an employee is different. For example, the employee may have filed a late visa extension application or may have misunderstood the requirement to renew their visa but otherwise is an exemplary employee. In that scenario, you may be happy to re-employ the worker as soon as they have resolved their right to work in the UK so you can continue to legally employ them without being at risk of civil or criminal penalties or losing your sponsor licence.
As employment situations and circumstances are all different, Sponsorship Licence lawyers recommend that you take urgent specialist employment and business immigration law advice to work through your obligations to your sponsored employees, and those workers who have limited leave to remain in the UK, whilst also ensuring you remain compliant with your sponsor licence duties and avoid breaching the illegal working legislation.
UK Online and London-Based Immigration Solicitors and Sponsorship Licence Lawyers