Right to Work Checks

The UK Visas and Immigration amended the Right to Work checks in March, 2020 to make way for their easy transition and further implementation during the Covid-19 pandemic. Originally the checks were conducted using video calls and using scanned copies shared over emails in place of originals, even as the employees were made aware that such measures shall be temporary and shall be ceased after a special notice. As the points-based immigration system has been made applicable from the year 2021 onwards, employers countrywide have incorporated the proposed changes in their recruitment plans and strategies so that all future recruitments are made in consensus with the Government’s Right to Work plan.

Importance of Right to Work checks

The Immigration, Asylum and Nationality Act 2006 mandates that all businesses must prevent illegal working by carrying out checks whose objective shall be the confirmation that a person living in the UK carries a legal right to work.

In case a person is restricted to doing a particular type of work only, and / or for the number of working hours, careful scrutiny must be paid to those aspects, notwithstanding which the employment of those individuals must be terminated to avoid any breach of those restrictions, else the employers are themselves held responsible for breaking the law. The penalties for such legal breaches can be severe which include fines and prison sentences in the worst cases.

Carrying out Right to Work checks:

• Identification of workers, subjected to temporary checks, as per usual process and documented for future references.
• Gauging the effect on the Covid-19 pandemic on the visa status of workforce with documentation.
• Carrying out the scrutiny of final applications with further follow-ups with applicants till biometric residence permits (BRP) are submitted over.

Right to Work Checks in light of the Covid-19 situation:

Even as organizational management are working remotely during the pandemic, Right to Work compliance must be maintained in accordance with the UKVI policy. This mandates employers to maintain all necessary standards while carrying out the Right to Work checks in a fully compliant manner.

Some temporary adjustments have been defined and introduced to ease employers’ dilemma in carrying out right to work checks by making the process somewhat flexible, as explained below:

• Allowing video calls between employers / management and workers to carry out checks;
• sharing scanned documents through email or any approved mobile app;
• permitting the use of Employer Checking Service when an employee is unable to provide any of the accepted documents.

Employers must continue to carry out and implement the Right to Work checks as per the UK Employer’s Guide. It is a punishable offence in the UK to knowingly employ a worker who doesn’t have a Right to Work. If it is found that an employee does not have any necessary permission to be in the UK, the employer must terminate the employment of that employee with immediate effect.

The employers must check that:

• submitted documents are genuine and originals
• the dates for the applicant’s right to work are valid and not expired
• same photographs are used across all documents and resemble the applicant
• same date of birth is used across all documents
• the applicant has sought permission for the job offered

In circumstance wherein workers are unable to furnish their Right to Work proofs, fairness and equality must be implemented and no worker must not be discriminated against, due to any shortcomings in furnishing proofs. The code of practice for employers: avoiding unlawful discrimination while preventing illegal working should be referred here.

Penalties in case of a failure to carry out a successful Right to Work check

Employers who have been found to have employed illegal workers / workers having no proper Right to Work in the UK can face a civil penalty, and also if they have not carried out any checks at all.

A 5-year jail term along with an unlimited fine is imposed if an employer is found guilty of employing a worker who did not have any Right to Work with the employer knowing or having reasonable cause to believe this.

If the employer knows or has reasons to believe that

• worker did not have permission to enter or remain in the UK
• worker’s leave has expired
• workers were not allowed to particular types of work
• worker’s papers were false

Employers must check properly that all their workers have the Right to Work in the UK and possess valid documents.

An employer shall also be penalised in the event that an he / she employs someone who does not have the right to work and thereon did not conduct any checks, or that he / she did not do them properly.

When this happens, employers usually receive a ‘referral notice’ to make them aware that their case is under consideration, and that a civil penalty (fine) of up to £20,000 for each illegal worker may be imposed. A ‘civil penalty notice’ may be sent to an employer if he / she is found liable and must respond within 28 days. The notice explains how to pay the pending fines, steps thereafter, as well as how to raise any objection to this decision.

An employer’s organizational and business details may be published by Immigration Enforcement to warn other businesses against employing illegal workers.

No civil penalties are imposed if an employer can show that he / she made correct and proper ‘right to work’ checks.

The Government provides further details about illegal working penalties.