Explanation & Investigation of Checks Required From Employers
12th May 2017
Right to Work Scheme
In effect all employers who employ any employees over the age of 16 in any part of the United Kingdom (i.e. England, Wales, Scotland and Northern Ireland) under a contract of service or apprenticeship, whether express or implied, and whether oral or in writing, are legally bound by the Right to Work checks that must be carried out.
The employer must carry out the prescribed Right to Work checks in accordance with the Home Office: Code of Practice on preventing illegal working: Civil penalty scheme for employers prior to the commencement of, and during, employment. And if the employer:
- can prove that an original document from List A, Table 4 for the employee was obtained from him/her, checked for its genuineness, copied and securely retained, electronically or in hardcopy, with a record of the date that the check was carried out, then the employer will establish a continuous statutory excuse and no follow-up checks will be required to be undertaken;
- can prove that an original document from List B, Table 5, Group 1 for the employee was obtained from him/her, checked for its genuineness and copied and securely retained, electronically or in hardcopy, with a record of the date that the check was carried out, then the employer will establish a time-limited statutory excuse until the expiry date of their leave. However, follow-up checks after the expiry date of their leave will be required to be undertaken by the employer, in line with List B, Table 5, Group 2;
- can prove that it was reasonably satisfied that prior to the expiry date of their leave, the employee had an outstanding, valid application, administrative review or appeal to vary or extend leave, then the employer will have a period of 28 days from this point, to contact the Employer Checking Service to obtain a Positive Verification Notice, and the employer will establish a time-limited statutory excuse for a period of six months. However, follow-up checks will be required to be undertaken every six months thereafter, until the outstanding, valid application, administrative review or appeal is determined, and in the event of a Negative Verification Notice the employment must be ceased and terminated with immediate effect.
- cannot prove that (i), (ii) or (iii) above were undertaken then the employer will not establish a continuous statutory excuse or a time-limited statutory excuse and is likely to be liable to a civil penalty, as the employee would not have a Right to Work in the United Kingdom.
It is against the law for employers to directly or indirectly discriminate against prospective or current employees when conducting the mandatory Right to Work checks on the grounds of, amongst many other protected characteristics as set out in the Equality Act 2010: race (which includes nationality, national or ethnic origin) and colour. This is also clearly set out in the Home Office: Code of Practice for employers: Avoiding unlawful discrimination while preventing illegal working.
These Right to Work checks must be undertaken by all employers on all prospective and current employees above the age of 16, and should be undertaken in a fair manner at each stage of the recruitment process as to do otherwise would be construed as discriminatory in law.
The employer is at all times legally responsible for undertaking and carrying out the Right to Work checks. This applies whether carried out personally, by its human resources department or by any other person, department or organisation.
If after a visit by the Home Office at the business premises of the employer it is shown that the Right to Work checks have been carried out then a No Action Notice will be issued by the Secretary of State for the Home Department (‘the SSHD’). If however the Home Office suspects that the laws of the Right to Work scheme have been breached by an employer then initially a Referral Notice will be issued and sent by the SSHD informing and putting the employer on notice that they are under investigation.
The employer would then be sent an Information Request by the SSHD providing them with an opportunity to put forward any further information and evidence to show that the Right to Work checks were in fact carried out.
After consideration of the case, including all of the information and evidence provided by the employer, the SSHD will then proceed to issue one of the following:
- a No Action Notice
- a Warning Notice or
- a Civil Penalty Notice.
If the SSHD issues a No Action Notice then the employer will have been deemed to have complied with the Right to Work checks and will therefore not be liable to pay any civil penalty.
If the SSHD issues a Warning Notice then the employer will be given a formal warning despite not having satisfied the Right to Work checks. However they will not be liable to pay any civil penalty on this occasion as discretion will have been exercised in its favour.
If the SSHD however issues a Civil Penalty Notice then the employer will be liable to pay a civil penalty of up to £20,000 for each illegal employee.
In the event of a decision made by the SSHD to issue a Civil Penalty Notice the employer may provide a written Objection within 28 days of the date specified by the SSHD in the Civil Penalty Notice on grounds that:
- they are not liable for a civil penalty;
- they have a statutory excuse; or
- the level of civil penalty is too high.
The SSHD will thereafter consider the written Objection and provide one of the following within 28 days:
- a Warning Notice
- a New Civil Penalty Notice (Penalty Increased)
- an Objection Outcome Notice (Penalty Maintained)
- an Objection Outcome Notice (Penalty Reduced)
- an Objection Outcome Notice (Penalty Cancelled).
In the event of (i) or (v) above the employer will not be liable to pay any civil penalty.
However, if the Civil Penalty Notice is maintained by the SSHD whether at the same, lower or higher level (i.e. (ii), (iii) or (iv) above) or no decision is made within 28 days, then the employer may appeal against the Civil Penalty Notice.
Depending on where the employer has its principal place of business an appeal will need to be lodged to the appropriate County Court in England, Wales or Northern Ireland, or The Sheriff in Scotland, within 28 days of:
- the deadline date as stated in the Objection Outcome Notice/New Civil Penalty Notice; or
- the deadline date by which an Objection Outcome Notice ought to have been received from the SSHD if not made
on grounds that:
- they are not liable for a civil penalty
- they have a statutory excuse, or
- the level of civil penalty is too high.
In addition to a civil penalty employers may be prosecuted and face a criminal penalty if:
- they employ an employee who is disqualified from being employed as a result of his/her immigration status i.e. does not have the Right to Work; AND
- the employer knows or has reasonable cause to believe that the employee is disqualified from being employed as a result of his/her immigration status i.e. does not have the Right to Work.
If an employer is prosecuted and the case against them is not proven to the requisite criminal standard then this would result in an acquittal and therefore they would not face a criminal penalty.
If however an employer is convicted either by pleading guilty or after a trial then:
- the Magistrates’ Court can sentence them to Imprisonment of up to six months (and once Section 154(1) of the Criminal Justice Act 2003 comes into force then imprisonment of up to 12 months) or an unlimited Fine, or both; or
- the Crown Court can sentence them to Imprisonment of up to five years, or an unlimited Fine, or both.
For the purposes of criminal liability an employer includes an individual, a body (whether corporate or not), an officer of the body (including a director, manager, secretary, person purporting to act as a director, manager or secretary or a member if the body is managed by its members), a partnership (whether limited partnership or not) and an officer of the partnership (including a partner or a person purporting to act as a partner).
A great deal of trust has been placed by Parliament in employers over the years on whom there is a stringent responsibility to ensure that illegal employees are not employed under any circumstances whatsoever and are thereby able to contribute to effective immigration controls in the United Kingdom.
This mandatory duty has been further tightened by Parliament as it is no longer necessary for the SSHD to prove that the employer had knowledge that the employee did not have the Right to Work in order for them to face a criminal conviction. With the introduction of a new criminal offence as of 12th July 2016, it is simply sufficient for the SSHD to prove that the employer had reasonable cause to believe that the employee did not have the Right to Work in order for them to face a criminal conviction. Further, upon conviction in the Crown Court the maximum possible period of imprisonment that an employer may face has been increased from two years to five years.
Consequently, it is essential that employers receive the correct legal advice on all of the steps to be taken at each stage ranging from conducting the Right to Work checks on prospective and current employees, as well as how to respond to an Information Request sent by the SSHD, or mount lawful challenges against a Civil Penalty Notice issued by the SSHD or charge(s) brought against them in the criminal courts.
This document was written by Aston Brooke Solicitors’ Immigration Department. For specific legal advice on your case please contact us on +44 (0)203 475 4321 and a member of our team will be able to assist you.
Disclaimer: this article is for general information purposes only. It does not present a detailed statement of the Law and does not constitute as legal advice. This is a summary only, and legal advice should always be sought on an individual case basis.
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