As the Government issue figures indicating that penalties for employing illegal workers in the UK hit nearly £12 million in the last quarter of 2017, our immigration solicitors and UK employment lawyers look at right to work checks and how to get them right to avoid falling foul of the rules and facing similar penalties.
Illegal working civil penalties
At the end of May, the Government published its latest figures detailing the penalties paid by UK businesses found to be employing workers who are in the UK illegally, without the right to work. The gross value of the penalties issued for the period 1 October 2017 to 31 December 2017 came to £11,600,000 and although this sum will be reduced as the result of objections and appeals, it’s still a significant sum. The sums represent penalties imposed in respect of a total of nearly 1,000 illegal workers. Perhaps unsurprisingly, the highest number of illegal workers (383) found in this period was in London, leading to 236 penalties to the value of £4,520,000, followed by the Midlands and Eastern England, where the figures were 205 workers, 126 penalties and fines of £2,390,000. Scotland and Northern Ireland demonstrated the lowest level of penalties and fines but still saw the discovery of 73 illegal workers and 40 penalties, with fines of £830,000.
Checking ‘right to work’
Given the real risk of financial penalties for employers who take on illegal workers, any of the best employment lawyers in London will advise you that it’s vital that all employers make sure they carry out right to work checks as a matter of course on all potential employees.
The most recent guidance on conducting right to work checks was issued by the UK Government in August 2017. It sets out the rationale for the right to work checks regime that is in place, and explains the obligations on employers.
The reason for right to work checks
As detailed in the latest guidance, the Government’s view of right to work checks is that they are in place to deter people from coming to the UK illegally to work; it is stated to be a deterrent to people considering paying people smugglers to bring them to the UK, and to prevent businesses that don’t play by the rules from undercutting those which do and is designed to prevent labour market abuse. The Immigration asylum and Nationality Act 2006 imposes a duty on employers to check that anyone they are thinking of employing has the right to work in the UK. A failure to do so can result in civil penalties, as discussed above.
Key points for employers about the right to work check
Carry out the check before the employee starts work
Employers must carry out their right to work checks before the person is employed. Doing it on the first day is not acceptable according to the guidance – the check must be carried out before they start work. There’s also an ongoing duty to check the continued right to work for someone who has a ‘time limited’ right to work in the UK.
Obtain original documents
As the employer, you must as the employer to provide original documents which allow you to check their right to work. The documents that will be acceptable are provided in two lists, depending on whether the individual has a permanent or temporary right to work in the UK, and include passports (appropriately endorsed where appropriate), biometric residence permits and national identity cards. Employers need to carry out the check in respect of every potential employee – so a UK birth or adoption certificate coupled with official evidence of the individual’s National Insurance number will be acceptable for UK nationals.
Check the documents provided
Employers are responsible for checking the original documents in the presence of the individual concerned, although this can be done via video link. The employer must have physical possession of the documents, so if the individual isn’t physically present, he or she will need to have sent documents to the employer. An employer cannot delegate its responsibility for checking the documents. If you are given a false document, you will only be liable to receive a penalty if it its ‘reasonably apparent’ that the document is false. You aren’t expected to use commercially available verification equipment to assist you in your decision about whether the documents are genuine or fake.
Keep copies of the documents you were provided
Once you have checked the document or documents that have been provided. This can be a hard copy or a scan as long as it cannot be manually altered. You must keep the documents for as long as the person is employed by you and for a further 2 years. At the same time, you have to make a contemporaneous record of the date that you carried out the check, and any follow up checks.
Understand when you have a responsibility to refer on
There are circumstances when, as an employer, you have to contact the Home Office to verify the right to work of an individual. If this is the case, you must wait for a Positive Verification Notice before continuing with the Employment of the individual.
Getting right to work checks right!
The right to work check applies to all employers, however big or small, and to all potential employees. The process should be embedded in your recruitment processes – most employment law firms in London will be able to advise you on the importance of this and the problems that can arise if you get it wrong.
OTS Solicitors are not only employment solicitors in London, we are recommended in the Legal 500 as some of the best immigration solicitors in London. We are ideally placed to advise employers on all aspects of Immigration for business, including Tier 2 sponsorship as well as carrying out right to work checks. To book an appointment with us, please contact us on 0203 959 9123.
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Posted on: Wednesday, 13 June, 2018