Right to work check increases
Civil Penalties for employers caught employing workers without the right to work will triple. The penalty for a first breach will increase to £45,000 per worker. Repeat offenders could receive penalties of up to £60,000 per worker.
A properly conducted right to work check gives you a statutory defence to the offence of employing a person who does not have the right to work legally in the UK.
This has prompted us to put together some key reminders about conducting right to work checks.
Key reminders for conducting right to work checks:
1. You must conduct right to work checks on all new starters, including those you understand to be British.
2. You should conduct a right to work check before the worker start work for you.
3. You should use the ‘right to work checklist’ to identify the document that you need to check. Check the this from the Home Office website each time you conduct a check. The Home Office periodically change the documents that they accept and using an old version of the checklist can lead to you performing a check incorrectly.
4. A biometric residence permit (BRP) is no longer a valid right to work document. It was removed from the checklist in April 2022. If you recruit a worker who has a BRP, you must do an online right to work check instead. The worker will need to give you an 8 digit share code. You should save a copy of the online right to work check. You must keep this for as long as the person is employed by you, and then for a further 2 years after their employment ends.
5. If the worker’s permission has an end date, you must have a system in place to re-check that worker’s right to work before their current visa comes to an end. Remember, if the worker can provide you with good evidence that they have submitted a valid visa application by the time that their leave expired, then you have a 28 day grace period when you can keep employing the worker. Good evidence could be their submitted application form or their document checklist. Both of these can be downloaded online and both will show the date and time of submission. Solicitor’s letters alone are not enough.
6. Remember, the Home Office can take a long time to make a decision. Indefinite leave to remain applications have a standard processing time of 6 months! If the worker has not got their decision by the end of the grace period, you can request a ‘positive verification notice’ using the Employer Checking Service. This is different from the online right to work check, although it is online and you do use it to check a person’s right to work. It is specifically for when an employee has an outstanding application, or an ongoing appeal for example. The positive verification notice will usually last 6 months, so you will need to re-check at the end of those 6 months unless the worker has received a decision by then.
7. If you missed a right to work check, or did a manual check when you should have done an online check, do a correct check now. If you did a manual BRP check after April 2022, retain a copy of that check along with a new online check.
8. Remember, the right to work check gives you a defence in the event that you are found to be employing a worker who does not have the right to work in the UK. You cannot be given a civil penalty for failing to conduct a check, if all your workers do in fact have the right to work.
9. If you have a sponsor licence, and you are subject to a compliance inspection, right to work checks are one of the first things that they check. As a licenced sponsor, one of your sponsor obligation is to carry out right to work checks and you can loose your licence for failing to do them.
Get advice on your right to work checks:
If you need advice on right to work checks, you can always speak to one of the business immigration team. Drop us an email at [email protected] or book a free consultation below: