The Latest on Right to Work Checks and Illegal Workers

Thomas Chase Immigration - St Paul's

On 12 July, the Home Office published updated guidance for employers to following the commencement of illegal working provisions.

The law on preventing illegal working is set out in sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act) and sections 24 and 24B of the Immigration Act 1971. On 12 July 2016, sections 34 and 35 of the Immigration Act 2016 (the 2016 Act) were commenced.

Section 34 of the 2016 Act amends the Immigration Act 1971 by inserting a new offence of illegal working (section 24B). Section 35 amends section 21 of the 2006 Act sets out the criminal offence of employing a worker with no legal entitlement to do so in the UK.

Background

Employers continue to have a duty to prevent illegal working in the UK. Employers are expected to do so by carrying out prescribed document checks on candidates before employing them to ensure they are lawfully allowed to work. For employees with time-limited permission to work in the UK, employers are expected to carry out more regular and time appropriate checks. See my earlier article on right to work document checks: Click hereBy adhering to the prescribed right to work checks, an employer will have a statutory excuse and may not have to pay a civil penalty should they be found to have employed an illegal worker.

Illegal workers include but are not limited to:

  • Students with expired visas, or students working more hours than they’re allowed to
  • People who work on a visitor’s visa
  • Those carrying out roles and functions not listed on their visa

The offence of illegal working is detailed as follows:

With effect from 12 July 2016, under section 24B of the 1971 Act (as inserted by section 34 of the 2016 Act), a person commits the offence of illegal working if he is:

  • Subject to immigration control and works when disqualified from doing so by reason of his immigration status; and
  • At the time, he knows or has reasonable cause to believe that he is disqualified from working by reason of his immigration status.

A person has been disqualified by reason of his immigration status if:

  • He has not been granted leave to enter or remain in the UK; or
  • His leave to enter or remain in the UK:
    • is invalid
    • has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time, or otherwise), or
    • is subject to a condition preventing the person from doing work of that kind.

What does this actually mean in practice?

An employer may commit the offence of employing an illegal worker if they employ a person who does not have permission to work in the UK and, more importantly, the employer knows or has reasonable cause to believe that the person has no right to do the work in question.

As a result, the employer can no longer evade prosecution where the investigating body cannot prove that the employer knew that the employee had no permission to work. The amended offence enables employers to be prosecuted where they have reasonable cause to believe that the employee could not undertake the employment, even where they have perhaps deliberately ignored information or circumstances that would have caused the employer to know that the employee lacked permission to work.

The new offence attempts to close some loopholes that existed. Further, the provisions no longer apply to employees only, but also to apprenticeships and the self-employed.

Penalties

Employers suspected of employing an illegal worker will be issued with a ‘referral notice’ informing them that:

  • The matter is being considered
  • Outlining the possible penalties. That is an unlimited fine (also known as a ‘civil penalty’) for each illegal worker

An employer may avoid a fine where they can demonstrate that they carried out the correct right to work checks. This highlights again how important it is for employers to not only make proper checks but also to retain records of those right to work checks.

Once the matter has been investigated and the employer is found to be liable for employing an illegal worker, the employer may be served with a civil penalty. The employer will then be given 28 days to respond, make payment as detailed in the notice or lodge an appeal. Not only that, but the employer may find their business details and results of the civil penalty notice made public.

For the individual concerned, should they be found to have worked without permission, their wages can be seized as if it were the proceeds of crime and they may face imprisonment and removal from the UK.

Conclusion

It cannot be stressed enough the need for businesses to seek immigration advice at the earliest to ensure that they are meeting (or continuing to meet) their legal obligations when employing workers. If done properly, employers can get on with their primary concern, running and growing their business. Fail to carry out correct right to work checks and an employer can find themselves facing severe penalties, including crippling fines, imprisonment and possible reputational damage. Given the penalties and government’s appetite for managing immigration issues, the costs of securing legal advice to ensure compliance far outweigh the risks of employing an illegal worker.

Marriage Visitor Visa – What is it and when should you get one?

Thomas Chase Immigration - UK Spouse Visa

I received a call from an applicant who wished to travel to the UK to marry her partner currently based in this country and was considering applying for a marriage visitor visa.

Mary had searched (and searched) the UKVI (UK Visas and Immigration) website and thought she had everything pretty much sussed. Her partner, Jonathan, also searched the internet and they were both agreed on what they both needed to do and began completing the online application form.

Until, that is, Mary called the Consulate in her home country with a query about processing times and received differing information about the application type and process, leaving her and Jonathan somewhat confused, frustrated and a understandably, a little fed up.

In defence of staff at the Consulate, it can be difficult to guide applicants through the correct process without having a clearer understanding of the needs of the person.

So back to Mary who sought information about Marriage Visitor visas.

Marriage Visitor visas are just that. They allow the overseas applicant from outside of the European Union (EU) to travel to get married or register a civil partnership in the UK.

Criteria

To qualify for a Marriage Visitor visa, the applicant must meet the following criteria:

  • Be 18 or over
  • Free to give notice of marriage, to marry or enter into a civil partnership in the UK within 6 months of their arrival
  • Be in a genuine relationship
  • Intend to visit the UK for less than 6 months
  • Intend to leave the UK at the end of their visit
  • Be in a position to support themselves without working in the UK or requiring public funds to do so, and that they can be supported and housed by relatives or friends
  • Must be able to meet the cost of the return or onward journey to their home country or country or residence
  • Not be in transit to a country outside the UK, Ireland, Isle of Man and the Channel Islands

Documents

Such applications require numerous original documents to be submitted. They include:

  • An original current passport or other valid travel identification
  • Proof that the applicant can support themselves during the entirety of their trip. Such evidence include:
    • Bank statements; or
    • Pay slips for the last 6 months
  • Proof of the applicant’s future plans for the relationship. This may include documents to show where they intend to live
  • Details of where the applicant intends to stay and their travel plans
  • Evidence that arrangements have been or are being made to marry or form a civil partnership or give notice of the intention to do so this during the visit. This may be a letter from a registry office

Additional documents

Depending on the applicant’s circumstances, it may be necessary to provide further documents to meet the eligibility requirements. For instance, if the applicant had previously been married, submitting the following may be necessary:

  • Decree absolute
  • Death certificate of a previous partner

Cost

The visa costs £87. There may be additional nominal fees for extra services payable to the Visa Application Centre.

Timing

Applicants may apply for a Marriage Visitor visa and submit their application to UKVI 3 months before the intended date of travel to the UK.

Processing times

Applications can take approximately 3 weeks to be concluded. However, processing times will vary depending on the Consulate location and individual circumstances. It is therefore strongly recommended that all required documents be submitted with the application to avoid delay at best.

Length of the visa

Marriage Visitor visas are issued for up to 6 months only. During that time, the applicant will be expected to marry or enter into a civil partnership in the UK. At the end of the visa, the visa holder must leave the UK and return to their country of origin or country of residence.

Is the Marriage Visitor visa the right visa?

The Marriage Visitor visa does not allow applicants to do the following:

  • Claim public funds
  • Bring in family members or dependants. They will need to apply separately
  • Reside in the UK for extended periods through frequent visits
  • Extend the Marriage Visitor visa or switch to another visa category
  • Take up employment – except for permitted activities related to the applicant’ work or business overseas. This may include activities such as attending meetings
  • Take up studies for more than 30 days.

Mary’s immediate and longer terms plans appeared to suggest that the Marriage Visitor visa was not the most appropriate option for her. Jonathan is a British Citizen living in the UK and Mary had expressed a desire to reside with Jonathan in the UK following their marriage.

Having set out the options to Mary, it became clear to her that the Marriage Visitor visa was too narrow for her needs. Such a visa would not enable her extend her stay in the UK beyond 6 months and make a life for herself with Jonathan, a British Citizen. Instead, we discussed the option of applying for a fiancée visa, which you can read about in my other blog post.

Needless to say, by talking through her immigration concerns with an expert, Mary saved herself further frustration and making a visa application that would not have met her immediate and longer term needs.