Right to Work Checks – changes now in force

22 May

As you will all be aware, under section 15 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act), if an employer employs a person who does not have the right to undertake the required work, they may be liable for a civil penalty. Employers have a duty to carry out prescribed document checks on people before employing them to ensure that they are able to work lawfully.

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As you will all be aware, under section 15 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act), if an employer employs a person who does not have the right to undertake the required work, they may be liable for a civil penalty. Employers have a duty to carry out prescribed document checks on people before employing them to ensure that they are able to work lawfully.

As of 16 May 2014 the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014 came into force bringing with it changes to the civil penalty scheme.  The changes apply where an initial check on a potential employee or a repeat check on an existing employee is required on or after 16 May 2014.  In summary, changes are as follows:

• The list of acceptable documents has been reduced
• List B sets out acceptable documents for right to work checks which provide a statutory excuse for a limited period of time
• The front page of the passport no longer needs to be copied to establish and retain a statutory excuse
• International students with a limited right to work are required to provide an employer with evidence of their academic term and vacation times for the duration of their studies in the UK while they work
• All documents with an expiry date must now be current unless exceptions apply
• A record of the date on which a check was made must now be retained
• Where a person presents a document with an expiry date, the follow-up check is now required when their permission to be in  the UK and do the work in question expires
• If a Certificate of Application or an Application Registration Card is presented as evidence or the employee has no acceptable documents due to an outstanding application or appeal against an immigration decision, the follow-up check is required 6 months after the initial check
• There is an extension of the statutory excuse for a maximum of 28 days beyond the expiry date of permission to work where the employer is reasonably satisfied that an employee has submitted an application to the Home Office or has an appeal pending.  During this time the employer must contact the Employer Checking Service for verification.  If a Positive Verification Notice is received the excuse will last for a further 6 months from the date specified therein whereas if a Negative Verification Notice is received the statutory excuse will end
• There is an extension of the grace period to 60 days for conducting right to work checks on people acquired as a result of TUPE transfer
• A partial right to work check is no longer a mitigating factor in the calculation of a civil penalty

A handy guide has been provided by the Home Office and can be accessed at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/311639/2014-05-15_An_employers_guide_to_right_to_work_checks.pdf.  It is definitely worth a read – save a copy in your work folder for future reference!

Leanne Buckley-Thomson

 

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