As part of the Home Office’s widespread effort to curb migration as well as boost revenue companies that are in breach of immigration compliance has tripled.
Failing to carry out Right To Work checks doesn’t just come with fines, employers are also at danger of reputational damage, removal of employment rights and even prison time!
In this article, we go over how you can protect yourself by following the Home Office’s updated guidance regarding Right to Work Checks.
Sections:
- What is a Right to Work Check?
- What are the new regulations around Right to Work checks?
- How are the Right to Work Checks carried out?
- Who has to carry out the Right to Work Check?
- What happens if a Right to Work Check is not carried out?
- What is a Statutory Excuse?
- How can WPC help?
What is a Right to Work Check?
A Right to Work Check is a process that has to be carried out by employers to ensure employees have permission to work in the UK. Right to Work checks are part of an identity program under the Digital Identity and Attributes Trust Framework – which also includes Right to Rent and DBS Checks. These checks are designed by the UK Government to provide guidelines around people who have permission to fill certain roles.
Of the different identity frameworks, Right to Work checks are the most detailed and failure to comply has some of the most grave consequences. Therefore, it is imperative that all UK employers have robust Right to Work procedures in place that are fully compliant and implemented correctly.
The Right to Work provisions are laid out in Sections 15 – 25 of the Immigration, Asylum and Nationality Act 2006, with the process being supported by statutory guidance from the Home Office. The guidance from the Home Office is updated regularly, most recently in August 2023.
What are the new regulations around Right to Work checks?
In recent months, the UK government has taken an increasingly hostile approach towards migration. This includes increased charges for visa applications, reduction of the Shortage Occupation Lists and drastic changes in immigration laws.
As part of these changes, new regulations have also been introduced around Right to Work checks which make it even more important for employers to be carrying them out properly. For example, the main changes are:
- First breach results in a £45,000 fine instead of £15,000
- Repeated breach results in a £60,000 fine instead of £20,000
Alongside these huge increases, the Home Office have confirmed that mitigating factors will be less effective under the new regime. For example, where there was no breach in the past three years fines could be a maximum of £5,000, however, under the new rules this will be £45,000. In the past, when breaches were not reported by the employer, the minimum penalty was £15,000 – this has now risen to £55,000.
In addition, there has been further clarification confirming that certain Right to Work checks are wholly ineffective. As described by Pledger “as many of these identify service providers offer checking services which appear to offer no protection to employers.” LINK! With these changes, it is paramount that employers have a thorough understanding of the Right to Work process.
How are the Right to Work Checks carried out?
The process for carrying out Right to Work checks are different depending on each employee. There are four main routes:
- Manual Right to Work Checks
- Digital Right to Work Checks
- Online Right to Work Checks (using a Share Code)
- Home Office Employer Checking Service
The manual Right to Work check is the simplest scenario. However, this is fraught with nuances that have to be taken into consideration. For example, a verified Identity Service Provider (IDSP) must be used otherwise the employee must be in physical proximity of the employer. In addition, IDSP’s can only be used where the employee is a British or Irish citizen and has a valid British or Irish passport. In cases where the employee is an immigrant, the other routes for Right to Work must be used.
The other routes are more complicated then simple manual Right to Work checks. For example, the Online Right to Work Checks require the acquisition of an Employee Share Code which the employer can use to receive a confirmation of employment status directly from the Home Office. In addition, the Employer Checking Service and Digital Right to Work checks are only applicable to a highly specific subset of employees such as those that are part of the EU settlement scheme.
Alongside understanding which route is appropriate for each employee, employers must also pay attention to how the relevant documents are evaluated. This is because checking and record keeping is critical for Right to Work compliance. According to the Home Office, employers must reject any documents that they think are fraudulent, and the documents in question should be retained for the full period of employment and 2 years after. There are additional requirements around document retention such as:
- What parts of official documents must be copied
- What format copies can be in
- Record keeping practises such as recording dates
Finally, it is important to remember that Right to Work checks are not a one off process. Rather, they have to be carried out regularly, to ensure ongoing compliance with immigration regulations. If all of the specific regulations are followed, then these checks provide a “statutory excuse”.
Who has to carry out the Right to Work Check?
All UK employers, whether they hire immigrants explicitly or not, must carry out Right to Work checks. This is because it is the employers responsibility to check that the people they employ have a valid permissions to work in the UK. In addition, employees can loose their right to work at any moment, therefore, employers should continually carry out these Right to Work checks for existing employees.
Whilst we have continually referred to “employees” throughout this article, it is actually “potential” employees that must go through the Right to Work check. This means that the HR personnel, or whoever is responsible for recruitment, must carry out these checks on any potential candidates before they become employees. Unless the Right to Work check was carried out before employing candidates, the employer will not have a statutory excuse and will be liable for the consequences of hiring illegal workers
Furthermore, whilst it is usually the Human Resources department that should carry out these checks, it should be noted that failure to comply brings repercussions against the company as a whole. These negative repercussions can occur when there is even just a slight defect in the Right to Work check process. Therefore, it is the responsibility of senior management team to ensure they have appropriate measures in place to avoid the drastic monetary, reputational and legal consequences of failing to carry out Right to Work checks.
What happens if a Right to Work Check is not carried out?
To start with, if an employer has not hired an illegal immigrant then there will usually be no consequences for failing to carry out a Right to Work Check.
However, if a Right to Work check is not carried out and an employer is found to have employed an illegal worker then there are severe consequences.
If the employer knew, or had reasonable cause to believe, that the employee was illegal, then the Directors may be:
- Guilty of a criminal offence
- Receive up to 5 years of prison
- Receive up to an unlimited fine
- Removal of their Sponsor License
- Disqualified as Directors
- Forced to Cease Trading
- Included in Home Office penalty publications
Where the employer *unknowingly* employs a person that does not have a valid permission to work in the UK, the liabilities are still severe. As described above, employers face fines of up to £60,000 per illegal employee. In addition, employers that are fined will be published in lists like this one which will bring significant reputational damage to the business.
On the other hand, if an employer carries out a Right to Work check in the correct manner, they will have a Statutory Excuse.
What is a Statutory Excuse?
A Statutory Excuse is a means of avoiding the consequences described above. A statutory excuse is a means by which the employer can prove they fulfilled all of their obligations under the law. Accordingly, it would be an injustice for the government to enforce penalties against them.
In the context of immigration law, the Right to Work check process acts as a Statutory Excuse for employers. By proving that the Right to Work check process was adhered to, employers will absolve themselves of liability if they inadvertently hire an illegal immigrant.
However, to be granted this statutory excuse, all of the guidance provided by the Home Office must be followed. As highlighted by this blog, this is not always easy.
How can Work Permit Cloud (WPC) help?
Work Permit Cloud are specialists in Business Immigration law and we can help you by implementing a recruitment process that guarantees adequate Right to Work checks. Through our cutting-edge software solution, we automate immigration compliance. Using WPC’s software, your company can be assured that they will always have a statutory excuse in case of changes in immigration law.
In addition, WPC can provide expert legal services if you have been accused of breach. WPC can make objections to the Home Office and highlight mitigating factors that can reduce or remove any penalty you may be facing.
For any business immigration queries, please contact us at 020 8087 2343
