The 1 July 2021 saw the end of the grace period since the UK left the European Union. EEA and Swiss citizens and their family members now require immigration status in the UK, in the same way as other foreign nationals. They can no longer rely on their passport or national identity card to prove their right to work here. Irish citizens can still continue to use their passport or passport card.
Most EEA citizens resident in the UK will have made an application to the EU Settlement Scheme. If so, they will be able to evidence their right to work digitally, using the Home Office online right to work service on GOV.UK. There will, however, be other EEA citizens who have some other form of leave to be in the UK, which is held in a physical document, providing employers with a statutory excuse against liability for a civil penalty.
A Draft ‘Code of practice on preventing illegal working: Civil penalty scheme for employers’ has been issued by the Home Office under section 19 of the Immigration, Asylum and Nationality Act 2006 to specify the factors to be considered by the Home Office in determining the amount of the civil penalty for employing an illegal worker.
Employers have a responsibility to prevent illegal working in the UK by ensuring that employees have the right to work in the UK. A notice requiring the payment of a penalty will be served where an employer employs a person over 16 years old, who is subject to immigration control and not allowed to carry out the work in question, either because:
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, no longer applies or is subject to a condition preventing them from accepting the employment.
To avoid a penalty, employers need a statutory excuse to employ a foreign national and comply with the correct paperwork and procedures. Employers can check and submit the relevant documents either online or manually.
The online system allowing employers to check whether a person is allowed to work in the UK and the nature of any restrictions on that person’s right to do so can be accessed via ‘View a job applicant’s right to work details’ page on GOV.UK. The information is provided in real-time, directly from Home Office systems so there is no requirement to see the documents.
For employers who require a manual document-based right to work check, they will first need to:
obtain original versions of one or more of the acceptable documents;
check the documents in the presence of the holder of the documents; and
make copies of the documents, retain the copies and a record of the date on which the check is made.
Employers must check the validity of the document in the presence of the holder to ensure that:
they are genuine;
the person presenting them is the prospective employee; and
the photograph and dates of birth are consistent across documents and with the person’s appearance.
Acceptable documents for establishing a statutory excuse when conducting a manual right to work check fall into two categories:
List A contains the range of documents which apply to a person who has a permanent right to work in the UK and will establish a continuous statutory excuse for the duration of that person’s employment. In this case there is no need to repeat the right to work check.
List B documents will establish a time-limited statutory excuse because the employee has restrictions on their permission to be in the UK and to do the work in question. To retain their statutory excuse for employment, employers must undertake follow-up right to work checks.
Lists of acceptable documents for right to work checks are set out in the Right to Work Checklist on GOV.UK
If employers do not comply with their duty to prevent illegal working by carrying out right to work checks the civil penalty scheme will be imposed. Failure to pay the penalty will result in enforcement action, including action in the civil court to recover the unpaid penalty. This action may have an adverse impact on the ability to act in the capacity of a director in a company and affect the ability to sponsor migrants who come to the UK in the future.
The actual penalty amount will depend on an employer’s history of compliance with right to work checks as an employer and is calculated on a sliding scale, starting at £15,000 for those who have not been found to be employing illegal workers within the previous three years, and £20,000 for those who have.
