Checks are not just for large multinational organisations
by Rhona Azir.
Rhona Azir is an immigration associate at Dentons UK.
rhona.azir@dentons.com
THE need for employers to have an awareness of right to work legislation can often seem quite daunting or unnecessary but failure to gain an understanding could seriously cripple a business.
A common error is the belief that only large businesses, which employ workers who are non-British or EU citizens, need to carry out right to work checks.
In reality, even if a business is small in size or only has British staff on payroll, right to work checks are still mandatory and must be carried out before a future employee starts work.
Failure to comply with right to work legislation could lead to a civil penalty of £20,000 per illegal worker, a prison sentence of five years and an unlimited fine for more serious cases and the business being “named and shamed” publicly.
For licensed premises which sell alcohol, employing illegal workers could lead to a review of or a possible revocation of the licence. However where an employer carries out a right to work check on time and by following the Home Office guidance, they will usually be provided with a statutory excuse against liability.
Therefore it is important for employers to have an understanding of the way to carry out a right to work check and what to do with those checks.
The Home Office advises a three-step process in undertaking right to work checks – “Obtain, Check, Copy”. This involves the employer requesting and obtaining an original identity document belonging to the individual. In most cases for British citizens, this would be an original British passport. However the Home Office recognise that not everyone has a passport and will accept, for example, a birth certificate along with evidence of an employee’s National Insurance number.
The current rule for EU nationals currently remains unchanged and an original EU passport or ID card for nationals or a passport along with a valid entry visa or residence card for their non-EU family members would meet the requirements.
Checks should not be carried out retrospectively on EU employees to confirm their status if they have started work before 1 January 2021 and new guidance on right to work checks post-Brexit is expected in due course.
For those who require a visa to work in the UK, they will need to present both a current passport and a Biometric Residence Permit (BRP) or an original visa as it appears in a passport.
For individuals who have been issued with a 30-day UK entry visa, with the requirement of collecting a BRP in the UK on arrival, right to work checks must be carried out on the original passport with the 30-day visa, which is stamped on entry at the airport, as well as a second check on the BRP once received.
Additional right to work checks must be carried out for individuals who require a visa to work in the UK when they obtain a new visa during the usual extension process. Again this should include a copy of their current passport as well as their new BRP.
Regardless of the type of document provided, all checks must take place in the presence of the future employee to verify that they are who they say they are and this must be carried out by an authorised individual within the organisation, for example someone in HR. A colour copy should then be retained, either as a hard copy or electronically, with the date the check was made recorded on the document.
Alternatively, it is possible to carry out an electronic right to work check if an employee has had their UK immigration status confirmed under the EU Settlement Scheme or if they have a BRP or Biometric Residence Card.
The Home Office states that employees should be given every opportunity to demonstrate their right to work, however should they refuse to consent to the online service, the manual right to work check should be carried out instead.
All right to work documents must be kept for two years after an employee has left employment.
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