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Law and Border: Checking the Right to Work in the UK

With the upcoming referendum on the UK’s membership in the European Union and the Europe-wide refugee crisis arising from the conflict in Syria, immigration has been a particularly hot topic in recent months.  Indeed, new “right to rent” rules were introduced from 1 February 2016 requiring landlords, agents and householders letting private rented accommodation or taking in a lodger (including those subletting their property) to obtain and check any new occupier’s original documentation to ensure that they are legally permitted to be in the UK. A failure to carry out a right to rent check may result in a civil penalty where the occupier is in the UK illegally.

The new rules for landlords reflect practices that have been in place for a few years for employers. Knowingly employing an illegal immigrant is a criminal offence which can result in an unlimited fine and up to two years’ imprisonment. Employing an individual who has no legal right to be in the UK or who is working in breach of the conditions of their stay in the UK is unlawful and may give rise to a penalty of £20,000 per illegal worker; ignorance of their status is not a defence.  Only by evidencing that they have made the appropriate checks will employers have an excuse against a liability of a civil penalty.  So what do employers need to do in order to protect themselves?

 

Obtain documents

In order to avoid claims for discrimination, employers should request the relevant documents from all prospective employees, not merely those who appear to be of non-British descent. The documents to be obtained from employees are detailed in either List A or List B of Annex A to the Home Office guidance. Documents in List A provide a continuous statutory excuse throughout the individual’s employment. These documents must be obtained before employment starts, and no further checks will then be required. List A includes (but is not limited to) documents such as a British, European Economic Area (EEA) or Swiss passport, a document certifying permanent residence as an EEA or Swiss national, or a current Biometric Residence Permit indicating that the individual has indefinite leave to remain in the UK.

Documents in List B provide a time-limited statutory excuse. This may include a current passport endorsed to allow the work in question, a time-limited Biometric Residence Permit, or a current EEA Residence Card. Follow up checks will be required before the relevant entitlement expires in order to retain the statutory excuse.

List B also includes a Positive Verification Notice, which can be obtained via the Home Office’s Employer Checking Service and grants an excuse for up to six months.  This may be required where the employee cannot provide their documents, for example due to an outstanding appeal (please note our Caselaw of Note regarding a case involving just this issue). The employee’s consent must be obtained before the check is made.

 

Check documents

Employers must check the documents to ensure they are genuine. The checking of documents is the employer’s responsibility, and cannot be delegated to a third party. The responsibility can be delegated to a staff member but the liability for any penalty remains the employer’s. Employers must check for:

  • consistency of names, photographs and dates of birth across documents;
  • expiry dates for permission to be in the UK;
  • any work restrictions; and
  • genuineness of the documents, ensuring that they belong to the individual and have not been tampered with.

 

Where names have changed between documents, the reasons for this should be checked and supporting documents should be obtained (such as a marriage certificate or deed poll).

Students are usually subject to work restrictions during term time. In such cases, the employer must obtain details of the academic terms and vacation times. Specific additional documents may therefore need to be obtained and checked.

It is not expected that the person checking the documents will be an expert in identifying false documents, but rather that they are untrained and have carefully but briefly examined the document without the use of technological aids. Employing someone where it is reasonably apparent that their document is false or that they are not the person to whom the document relates will lead to a civil penalty. Larger employers with high staff turnover may wish to invest in technology that can check the authenticity of certain documents, and/or consider the Home Office’s guidance on recognising fraudulent identity documents.

 

Retain evidence                                                                                  

Simply checking documents will not provide a statutory excuse. A record of every document checked must be kept, either in hard copy or as a scanned, unalterable copy. Copies should be retained throughout the individual’s employment and for two years after their employment ends. The date on which the document was checked must also be recorded.  The copies must be reasonably accessible in the event that they need to be checked.

 

What to do if an employee has no right to work

A dismissal is potentially fair if the reason is that the employee could not continue to work without contravening a legal duty or restriction imposed on him or the employer. In such cases, the employer must know that there is or will be a contravention. Where the employer reasonably believes that the employee no longer has a right to work in the UK, they may be dismissed for some other substantial reason but a fair procedure should be followed and a right of appeal granted.

 

Matthew Cranton - Employment & Immigration

This article was first published on 3 May 2016 as part of our Employment Law Update series. Register above to receive our updates as soon as they are published, directly to your inbox! 

This article is offered for general informational purposes only, and does not constitute legal advice. The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the views or opinions of Solomon Taylor & Shaw.