A UK Sponsor Licence Holder’s Guide To Understanding Right To Work Checks
UK Sponsor Licence holders have many duties and responsibilities which must be complied with; one of these is conducting right to work checks.
Many HR directors and employers find conducting right to work checks confusing. Fortunately, by engaging a top London Immigration law firm, right to work checks can be delegated to an experienced Immigration lawyer. Alternatively, Immigration solicitors can provide the best advice on right to work checks and how to keep accurate records.
What is a right to work check?
Most countries in the world have very strong political policies aimed at preventing illegal working, and the UK is no exception. Not only do employers who encourage and hire illegal migrants risk undercutting legitimate businesses, but illegal migrant workers are also highly vulnerable to abuse and exploitation.
The law on preventing illegal working is set out in sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act) and sections 24 and 24B of the Immigration Act 1971.
A right to work check involves an HR director or employer checking employee documents that show they have a legal right to work in the UK. This must be done before the employee starts work. Follow-up checks must also be done on people who have a limited time in which to work in the UK; for example, if they hold a Tier 2 (General) Visa and only have two years remaining.
What are the benefits of conducting correct right to work checks?
A correctly conducted right to work check can provide an employer with a statutory excuse against a civil penalty for employing a person illegally, should it be that the employee in question does not have, or loses, the right to work at some point during the Employment. To obtain the excuse, the employer must show that it has taken particular steps during the right to work check. Obtaining relevant documentation is not sufficient in itself.
In addition, if the Home Office discovers that members of your team have no legal right to work in the UK, your Sponsor Licence can be downgraded, suspended or even revoked.
Tier 2, 4 and 5 sponsors are required by the terms of their licences to have systems to ensure that right to work checks are properly conducted on all employees, rather than just their sponsored workers. An Immigration solicitor can provide you with the best advice for ensuring correct HR policies and procedures are in place to make valid right to work checks on people holding these categories of visa.
How are right to work checks conducted?
Checking a person’s documents to determine if they have the right to carry out the type of work you are offering comprises three key steps:
- Obtain the person’s original documents that show they have a legal right to work in the UK;
- Check the validity of the documents in the presence of the holder; and
- Make and retain a clear copy, and make a record of the date of the check.
Important - If an individual’s Employment ends for any reason then the statutory excuse will end too. Therefore, if the employee later returns to your Employment, you must conduct a fresh right to work check.
Obtaining the documents
In most cases, the documents you check must be original. Home Office guidance sets out the documents you can accept as proof of an employee’s right to work in two lists, aptly named List A and List B.
List A contains the range of documents you may accept for a person who has a permanent right to work in the UK. List B contains a range of documents you may accept for a person who has a temporary right to work in the UK.
An experienced Immigration lawyer can advise you on the best documents to accept under each list.
Checking the documents
When checking the documents, an HR director or employer needs to ask themselves three questions:
- Do the features of the documents meet the specified requirements? - For example, under List A, ’a current passport’ will only be satisfactory if it has been “endorsed to show that the holder… is allowed to stay indefinitely in the UK.” The employer, therefore, in this example, must obtain the document and check that two features are present; namely that the passport is current and that it has an endorsement showing Indefinite Leave to Remain. If they are not both present, then the document will not be valid for the purposes of the right to work check.
- Does the document actually relate to the employee? – The required steps to check the holder’s identity are set out in the Restrictions on Employment Order, article 6. One way of ensuring a photo document belongs to the employee is by carrying out the check in front of the employee, or at least by video link.
- Is the document a forgery? - Home Office guidance states that the statutory excuse will be lost if it is 'reasonably apparent' that the document relied upon was false. The guidance goes on to say: “This means that a person who is untrained in the identification of false documents, examining it carefully, but briefly, and without the use of technological aids could reasonably be expected to realise that the document in question is not genuine.”
Making copies of the document and keeping records
HR directors or employers may need to take copies of the documents, record the date of the check and, where applicable, diarise a repeat check to comply with right to work checks.
Mitigating the risk of employing illegal workers
A positive right to work check will normally mean an employer has not committed an offence, even where the worker is not, in fact, legally entitled to work. This is because a right to work check can be regarded as a reliable and sufficient method for employers to use.
However, where evidence of illegality contradicts the findings of the compliance check and is ignored by the employer criminal sanctions may be risked. Liability may also arise where an Immigration officer conducts an Immigration enforcement visit and identifies illegal workers. If they advise the employer of the illegality, then the employer will risk prosecution if they continue to employ them.
The best way to ensure you are complying with Sponsor Licence holder right to work check requirements is to instruct an Immigration solicitor to manage the process for you. This will allow you to concentrate on your business, confident that your team members have a legal right to work in the UK.