Right to work checks, Immigration Control, Documents which are not acceptable for providing a right to work and employing workers from European Economic Area (EEA)

FAQs about the illegal working civil penalty scheme, Right to work checks, Immigration Control, Documents which are not acceptable for providing a right to work and employing workers from European Economic Area (EEA)?

Introduction

Employer may be liable for a civil penalty if they employ someone who does not have the Right to Work in the UK under Section 15 of the Immigration, Asylum and Nationality Act 2006 (‘’The Act’’). Employers have a duty to prevent illegal working by people who are subject to immigration control. If an employer fails to comply, they may face a financial penalty (civil penalty) and in some cases, prosecution. Employers can be sent to jail for 5 years and pay an unlimited fine if they are found guilty of employing someone who did not have the right to work in the UK.

Right to work checks

Q1. Why do employers need to carry out document checks?

A: Employers have a duty to prevent illegal working. You should have systems and process in place to check right to work and make it harder for people with no right to work to unlawfully obtain or stay in employment. Document checks will always make it easier for employers to ensure that they only employ people who are permitted to work in the UK.

Q2. How do I carry out Right to work checks?

A: The checks can be broken down into 3 key steps:

1. Obtain: Obtain original documents.
2. Check: Check the documents obtained in the presence of the document holder. If you are unable to check in person temporarily due to COVID-19 then make sure you use the right technology.
3. Copy: Always make and retain a clear copy and record the date of check.

Q3. Do I need to do any further checks?

A: No, if the employee is British or has a permanent settlement. From 01 Jan 2021 EU nationals may be subject to Immigration Control and will be treated equally as non-EU citizens. While conducting your right to work checks you should carefully note the expiry date of the residence permit and the conditions attached to it. Students from non-EU countries in most cases are only allowed to work 20 hrs during the term-time.

Q4. When should I undertake the right to work check?

A: Employers should undertake the right to work check before the employment commences which is usually before the start date.

Q5. How does a British citizen prove their right to work?

A: A British citizen may prove his right to work by presenting the following documents:

1. British passport (valid or expired)
2. Combination of the documents like P45, P60, NI number card or official letter issued by the Governmentagency and a full UK birth or adoption certificate, or a certificate or naturalisation as a British Citizen.

Q6. Can an employer conduct right to work checks if they believe the employee is not British citizen based on their colour or ethnic or national origins?

A: No, the employer could find themselves accused of discrimination and it could be used as evidence against them under the Equality Act 2010.

Q7. What should employers do if they have concerns about the documents presented to them?

A: If you are not satisfied with the right to work checks and believe that the documents are fake or doctored, you can decline the offer of employment. If you have any concerns about the validity of the document, please contact the Home office on 0300 123 4699 for further advice. Again, there is technology available which can help you identify whether a document has been forged or not. Use of such systems can help you from being penalised by the Home Office.

Q8. Can I do a right to work check by video link, if the document holder is not physically available?

A: Yes. You can conduct a Right to Work checkby video link. Even though you may be in contact with the person by live video link, the original documents must be in employer’s physical possession. Scanned or faxed copies are not acceptable.

Q9. Can I keep the employee’s original documents?

A: No

Q10. How long should I retain the documents?

A: You must keep the documents for the duration of the individual’s employment and for a further 2 years after the employment has ceased. Please make sure you keep the documents securely in line with Data Protection and GDPR requirements.

Q11. Can someone work on a visit visa?

A: No. These visas are issued to UK visitors and can be valid from 6 months to 10 years. UK visit visa holders are not allowed to undertake paid or voluntary work in the UK.

Immigration Control

Q1. Who is subject to UK immigration control?

A: The following categories of individuals are exempt from immigration control and can be employed without restriction. Anyone else are subject to immigration control:

1. British citizens
2. Commonwealth citizens with right to abode in the UK
3. Nationals from common travel area (Ireland, Isle of Man, and the Channel Islands)
4. National from EEA and Switzerland
5. Non-EEA family members of nationals from EEA countries and Switzerland if the EEA national is residing lawfully in the UK.

You still conduct a right to work check on someone who you believe to belong to one of the above categories.

Types of Identity Documents

An identity document is any document which may be used to verify a person’s personal identity which can include:

1. Passports

UK passports are valid for up to 10 years and 9 months. Following 4 styles are in circulation which are issued British citizens.

2. BRPs (Biometric residence permits)

BRP was introduced in 2008 which gives permission to reside in the UK. A person will usually have a valid BRP.

3. National identity cards

4. Residence documents

These ILR (indefinite Leave to Remain) stamps and vignettes allow non-EU/EEA nationals to remain indefinitely in the UK. There are still many in circulation because they have no expiry date.

 

5. Driving licences

6. Military ID cards

7. Official identity documents

Counterfeit Documents

A counterfeit document is a complete reproduction to resemble an officially issued document like passports or BRPs. The counterfeiter will often try to simulate security features that you would expect to see.

Things to consider when conducting your Right to work checks:

1. What is the overall quality of the document?
2. What is the reaction under UV light – bright or dull?
3. Are there watermarks and other paper features e.g. random fibres?
4. Has it been securely printed?