Right to work checks

In order to prevent illegal working in the UK, employers have a duty to perform right to work checks before employing an individual. This is to ensure that the individual is not disqualified from carrying out work due to their immigration status in the UK.

An illegal worker who is disqualified from working in the UK is an individual who does not:

  • Have valid leave to enter or remain in the UK or;
  • their leave to enter or remain in the UK is invalid or;
  • has ceased or the conditions associated with their status in the UK prevents them from working.

If an illegal worker is identified and their employer did not carry out right to work checks their employer may face the following sanctions:

  • Civil penalty of up to £20,000 per illegal worker;
  • 5-year prison sentence and an unlimited fine;
  • Closure of the business and a compliance order issued by the court;
  • Disqualification as a director;
  • Not being able to sponsor migrants;
  • Seizure of earnings as a result of illegal working;
  • Revocation of a licence if connected to the alcohol and late-night refreshment sector and private vehicle hire/taxi sector.

The civil penalty is determined on a case-by-case basis, this is in line with the ‘Code of practice on preventing illegal working.’ If you are found liable, you will be issued with a Civil Penalty Notice setting out the amount to be paid and by when.

It should also be noted that if an employee is undertaking a role which is different to that listed in the certificate of sponsorship, then that employee will also be considered as an illegal worker.

If it is later found out that an employee did not have the right to work in the UK, but the employer carried out the appropriate checks, the employer will not receive a civil penalty for the illegal worker.

The illegal worker is also committing a criminal offence, and may have their wages seized, be prosecuted and imprisoned for up to 6 months.

How are right to works check conducted?

A right to work check should be conducted before an individual is employed, to ensure that they are legally allowed to do the job in question. Checks can be done manually or online.

If manually, you will need to ask the prospective employee to provide acceptable original documents, check their validity and then keep copies on file and record the date the check was made.

Acceptable documents include British, EEA or Swiss passports, EEA or Swiss national identity cards, current biometric cards issued by the Home Office, evidence of settled or pre-settled status in the UK, under the EU Settlement Scheme. For more detailed guidance on acceptable evidence, please feel free to contact us for a consultation.

In regards to Tier 4 students, not all students are entitled to work while they are in the UK, some are entitled to take limited employment if permitted by the conditions of their visa. Employment permission will clearly be stated on their biometric card along with the hours, 10 or 20 hours a week. However, this is full-time during vacations.

If a potential employee is unable to provide evidence of their immigration status because of an outstanding application with the Home Office, you can use the online Employer Checking Service and provide the requested information.

Right to work checks and COVID-19

The Home Office has also confirmed that where a physical documents check and copying is not possible due to the closure of a company’s office, an employer can have a video conference with the new starter to show their passport and biometric document as well as email a scanned copy of document prior to the start of employment. A file note should be added confirming why you were not able to carry out a valid RTW check (seen the original document) due to Covid19.

As soon as the recruit is able to show their original documents in person, you should then take a certified copy and make a file note.

 

The content of this article is for general use and information only. Since each case should be prepared on its own merit and in light of the constant amendments to the Immigration Rules, it is important to note that the information provided must not be relied upon unless Migra & Co has either given written consent or has been officially engaged in relation to a specific immigration matter. As a result, Migra & Co will take no responsibility for any damage, cost or loss resulting from relying on the information contained in this article, blog and website.


We remain open for business and can arrange meetings by phone call or video conferencing to advise and assist with any UK immigration matters.
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