Right to Work Checks- Important changes

The Government has released a new Code of Practice on Preventing Illegal Working. The new code reflects the fact that, as of 28th January 2019, employers can now conduct ‘right to work checks’ online for certain employees.

Employers can still carry out manual checks if they choose to.

Why do Right to Work Checks?

  • The UKVI can serve an employer with a notice requiring the payment of a penalty of a specified amount where they employ a person who is subject to immigration control; and
  • aged over 16; and
  • not allowed to carry out the work in question because either they have not been granted leave to enter or remain in the UK or because their leave to enter or remain in the UK:
  • is invalid;
  • has ceased to have effect (meaning it no longer applies) whether by reason of curtailment, revocation, cancellation, passage of time or otherwise; or
  • is subject to a condition preventing them from accepting the employment.

In the event that an employer is found to be employing an employee who does not have the right to work, then they will have a defence if they have carried out the correct right to work checks. This can mean avoiding a financial penalty of up to £20,000.

In addition, if you are a licenced sponsor, failure to do right to work checks could lead to the loss of your sponsor licence.

What has changed?

Previously, employers had to conduct a manual check of an employee’s right to work documents in a specified form. Going forward, employers will have the option of making an online check to find out of an employee has the right to work. They will have to follow a three step process.

  1. The employee must give their permission for you to view their Home Office record online. They must do this by using the ‘Prove your right to work to an employer’ page on the .gov.uk website. This will generate a share code.
  2. The employer can then carry out the online right to work check by using the ‘View a job applicant’s right to work details’ on the .gov.uk website. The employer will need to enter the share code.
  3. The employer will receive a notice from the Home Office confirming whether the employee has the right to work and any conditions attached. The employer must retain this as evidence of having done.

This option will not be available for all employees because not all employees will be on the Home Office system. At present, an employee must have applied for ‘settled status’ as an EU national, or have a biometric residence permit. This means that you cannot use it for British nationals or those whose immigration status is proved by a vignette or sticker in their passport. For those employees, an employer must still carry out a manual check.

An improvement, but care still needed

This system should be more straightforward for employers to use for those employees who are eligible. However, there are some points that employers should still bear in mind.

This system is different from the existing online ‘Employer Checking Service’ checks. These are only for use where an applicant or employee has submitted an application for a visa to the Home Office before their old leave expired and the Home Office are still considering it. If the employee has the right to work, then the employer will receive a Positive Verification notice which will give them a statutory excuse for 6 months only. Employers must ensure that they are using the correct scheme.

Employers must make sure that they are using the gov.uk website. The Home Office clearly anticipate that there may be imposter websites that imitate the government website. Results from these will not give you a statutory excuse.

Employers must carry out their own online check using the share code. They must not rely on an online result provided by the employee themselves.

Employers must still check that the person that they are employing is the person for whom they get a notice, for example by looking at the photograph. You will not have a statutory excuse if the person you employ is clearly an imposter.

Some employees will require additional documents. For example, Tier 4 students can work only limited hours in term time. The employer must obtain evidence of their term dates from the university before employing the individual. These must be retained and refreshed over time. If you have any questions or concerns regarding right to work checks, or any other aspect of employing migrant workers, please contact Paragon Law for further advice and assistance.

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 Changes to the Immigration Rules – Update for Employers

The important changes to the Immigration Rules which employers and sponsored workers need to be aware of and which came into effect on 24 November 2016 are as follows:-

 

Tier2 (General)

  • The minimum salary threshold for experienced workers has increased to £25,000. This will increase again in April 2017 to £30,000.
  • The threshold remains £20,800 for new entrants i.e. those under the age of 26 or international students switching from Tier 4 to Tier 2.
  • An exemption from this increase will apply for nurses, medical radiographers, paramedics and secondary school teachers (mathematics, physics, chemistry, computer science and Mandarin). The exemption will end in July 2019.
  • Those employed under a graduate training programme will be able to change occupation within the programme or at the end of the programme, without their sponsor needing to carry out a further Resident Labour Market Test or the need for them to make a new application.
  • Nurses will continue to remain on the Shortage Occupation List but employers will need to carry out a Resident Labour Market Test before proceeding to sponsor a nurse under the Tier 2 (General) visa.

 

Tier2 (Intra-Company Transfer)

  • The Skills Transfer sub-category has now been closed.
  • The minimum salary threshold for the Short Term sub-category has increased from £24,800 to £30,000.
  • The minimum salary threshold for the Graduate Trainees sub-category has been reduced from £24,800 to £23,000 and the number of trainees each employer may sponsor has increased from 5 to 20.

 

The changes that are likely to take place in April 2017

  • The exemption currently from having to pay the Immigration Health Surcharge to Tier 2 (ICT) Migrants and their dependents is likely to be removed.
  • The new Immigration Skills Charge will be introduced and will be set at £1,000 per year for a sponsored worker of a large businesses and £364 per year for SMEs and charities. Exemptions will be applied to PhD occupations, ICT Graduate Trainees sub-category and international students switching from Tier 4 to Tier 2 (General).

 

Other Autumn 2016 changes to be aware of

  • The Home Office have previously accepted applications submitted within 28 days of a persons immigration status expiring regardless of the reason for the overstay. This has now been reduced to 14 days and an out of time application will only be granted if there is a good reason beyond the applicants control for the overstay.
  • The Rules have been amended to enable a Tier 5 A-Rated sponsor to certify maintenance in respect of a Tier 5 migrant and their dependents.

 

Immigration Act 2016

Two important provisions were introduced on 12 July 2016:

1.A new offence of illegal working

  • The offence is committed when a migrant works in the UK when he knows or has ‘reasonable cause to believe’ that he is disqualified from working.
  • The offence carries a maximum term of imprisonment of up to 51 weeks or a fine, or both.
  • A confiscation order may also be made under the Proceeds of Crime Act 2002 to cease the earnings of the convicted illegal worker

 

2. An amended illegal employment offence for employers

  • The offence has been widened to not only include employers who ‘knowingly’ employ illegal workers but also employers who have ‘reasonable cause to believe’ that the employee is disqualified from employment by reason of their immigration status.
  • The maximum term of imprisonment has increased from 2 to 5 years.
  • Immigration officers have also been given the power to arrest without warrant any person who they have reasonable grounds of suspecting has committed or is attempting to commit the offence of employing a person illegally.
  • It should also be noted that on 1 December 2016 immigration officers will be given additional powers under The Act to close business premises for up to 48 hours if employers who have committed immigration offences and they will be able to apply to the court for a compliance order to impose special measures, including ongoing closure, on the employer to prevent illegal working.

3. Why you should be concerned?

  • The bar has been reduced from ‘knowingly’ employing someone who does not have the permission to do so if as an employer you could be found to have had ‘reasonable cause to believe’ that the employee did not have or had ceased to have the right to work in the UK.
  • It should also be noted that if an employee of the business who has responsibility on behalf the business of any aspect of the employment of an individual has reasonable cause or believe that the employee does not have the right to work then the business will be treated as having ‘reasonable cause to believe ’that fact.
  • The 2016 Act does not give a definition of ‘reasonable cause to believe’ and it will therefore appear that the law will be developed on a case by case basis. The threshold will certainly be higher than mere negligence as this is the function of the civil penalty regime though, the bar has been set lower than ‘knowingly’ employing someone who does not have the correct immigration status.
  • Those employers who hold a Tier 2 license who fall foul of this legislation are likely to have their license revoked and the immigration permission of all migrant employees sponsored under the license curtailed. The business is likely to be prevented from applying for another Tier 2 license for a period of up to 12 months.

4. What you should be doing?

  • It is recommended that you review your right to work checks to ensure that your system and procedures are robust in order for you to maintain the statutory excuse for all employees.
  • You should also review your procedures in relation to change of circumstances and new information received after the employment has commenced.
  • HR and line managers should be given training on the new changes and what circumstances may trigger having ‘reasonable cause to believe’ and the action to be taken.

 

Training

Paragon Law will be running a training course on the new and proposed changes to the Immigration Rules, preparing for UKVI visits (including the areas of focus by visiting officers), the changes under the Immigration Act 2016 and protecting your EU employees following the Brexit referendum. This one day course will take place in January 2017 and places will be limited. Therefore to register your interest or if you require specific training for your HR advisors please email me at thalejv@paragonlaw.co.uk.