BDC Magazine

right to work

Latest Issue

BDC 317 : Jun 2024

right to work

Employing Workers with Temporary Right to Work: Beware Immigration Compliance Risks!

If you have workers on the books with temporary visas or restricted rights to work in the UK, your business is exposed to additional immigration compliance risks, as immigration solicitor Anne Morris explains. To comply with your duties to prevent illegal working, every employee should be onboarded in line with Home Office requirements to ‘Obtain, Check and Record’ appropriate Right to Work documents. This means checking and keeping copies of original, acceptable documents before someone starts working for you and – something which many employers are not always fully aware of – carrying out repeat checks if a person has a time limit on their work permission. If you’re found to be in breach of these duties, you could be liable for a hefty civil penalty of up to £20,000 per illegal worker, and could potentially face criminal prosecution. Ensuring compliance across a sizeable workforce and multiple sites is challenging in itself, but when your employees hold varying immigration status, requiring document checks to be run at different intervals – the risk to your business multiplies. But the legislation is clear – you must at any one time be able to accurately confirm the working status of every employee in your organisation. Your duties when employing immigration-restricted workers The Home Office sets out two definitive lists of ‘acceptable’ documents that individuals are to present to employers to prove their right to work in the UK. An individual’s immigration status determines which list they need to refer to and which documentation they must present to you to verify they have the relevant permission to carry out the work on offer. List A applies to those with permanent right to work, such as UK nationals or those with Indefinite Leave to Remain. Production of a valid, original List A document is sufficient to establish you as an employer have met your duty for checking an employee’s right to work for the duration of their employment with you. No further right to work checks will be needed for this employee.   Employees with limited leave to remain or enter the UK, restricting the duration or type of activity permitted, are required to produce items from List B to evidence their identity and their employment authorisation. You will need to conduct compliance checks at least every 12 months on employees relying on List B documentation. The potential for List B employees’ working status to change during the course of employment creates an area of risk for employers, requiring close and careful management. A follow-up right to work check should result in one of the following: The employee presents items from List B confirming continued, limited right to work: the 12-month cycle starts again. Where an individual’s leave expires during the period of 12 months after the last check, you should carry out a check at the point of expiry to verify their continued right to work. If further List B documentation is provided, a repeat check will be required at 12 months. If you are presented with a List A document, you have met your duty for the duration of the person’s employment with you and you are no longer required to carry out annual checks on that employee. Employer Checking Service If an employee presents documents from ‘List B Group 2’, or the individual is unable to present any acceptable document from List 2 – because the individual is awaiting an application decision by the Home Office – contact the Employer Checking Service to receive a Positive Verification Notice from the Home Office, confirming the continued eligibility of the individual to work for the duration that their application is outstanding and until their visa is approved. Loss of right to work If you establish that an employee no longer has the right to work in the UK and you continue to employ that person, you become liable for a civil penalty and the criminal offence of knowingly employing an illegal worker. It is best to seek advice as soon as you become aware of an employee’s loss of permission before taking action. Instant dismissal of an employee who no longer has the right to work can in some cases give rise to employment law issues, such as unfair dismissal or discrimination claims, which will require navigation. Managing compliance business risks What can employers do to effectively manage their List B employees, and reduce the risk of non-compliance and threat of civil penalty without onerous drain on resource? Automate your systems The most effective approach to managing List B documents is through an automated solution to prompts for HR teams to check on the progress of employees’ outstanding application. Compliant record keeping Repeat checks on List B personnel should be recorded as per UKVI guidelines and synced with the original record. An effective solution will sync the data into your HR or payroll system immediately. Personnel training Ensuring those in your organisation responsible for recruiting and onboarding understand, follow process. Through training can be effective to ensure Be clear on employees’ duties Ensure your employees are aware of their duty to notify you of any change in their circumstances or working status, and the wider requirements on them to manage their status appropriately.   Anne Morris is an immigration solicitor and Managing Director at UK immigration law firm DavidsonMorris. specialists in all areas of business immigration including right to work compliance, PBS licences and challenging civil penalties.

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