Right to Work checks can cause HR professionals and businesses no end of stress. Get it wrong and the Home Office can impose heavy (and sometimes crippling) fines or civil penalties of £20,000 per unlawfully employed person. A sponsor licence can be suspended and then there is the reputational damage and at worse, criminal convictions of up to 5 years for serious offenders.
As if that wasn’t bad enough, Immigration Officers have the power to effectively close business operations for up to 48 hours. It’s not uncommon for HR professionals to confess that they are absolutely scared of getting this wrong and that hiring nationals from outside of the UK and EU can cause a sense of nervousness.
Yet finding a fantastic applicant to fill a key skills gap is a cause for celebration. The fact that the applicant has signed the employment contract and turned up for their first day of work is credit to the company and should be the start of an amazing journey together between employer and potential employee.
So how can HR professionals feel confident about the Right to Work checks? I advise them to follow these 3 simple steps:
- Copy and Retain.
The key here is documents, documents, documents. Whilst the Home Office has placed a legal obligation on employers and HR professionals to check that the applicant has a right to legally work in the UK before the applicant starts working, the Home Office has also provided a list of original documents that it believes properly evidences such entitlements.
Those documents are partitioned into ‘Lists’ according to the current immigration status of the applicant.
List A Documents
Where an applicant has a permanent right to work in the UK, HR professionals may accept any documents from List A. The documents must be seen in their original format and must be obtained prior to the applicant starting their employment with the company.
As the applicant has a permanent right to reside and work in the UK, HR professionals will not need to conduct any further Right to Work checks for that applicant.
The company will have also established a continuous statutory excuse throughout that time. As a result, if for some reason, the applicant was later found not to have a permanent right to work in the UK, the employing company will have an excuse in law against liability for a civil penalty.
List A documents include:
|1.||A passport showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK|
|2.||A passport or national identity card showing the holder, or a person named in the passport as the child of the holder, is a national of a European Economic Area country or Switzerland|
|3.||A Registration Certificate or Document Certifying Permanent Residence issued by the Home Office, to a national of a European Economic Area country or Switzerland|
|4.||A Permanent Residence Card issued by the Home Office, to the family member of a national of a European Economic Area country or Switzerland|
|5.||A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK.|
|6.||A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK|
|7.||A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer|
|8.||A full birth or adoption certificate issued in the UK which includes the name(s) of at least one of the holder’s parents or adoptive parents, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer|
|9.||A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer|
|10.||A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer|
List B Documents
Where an applicant has a limited right to work in the UK, List A documents will not be appropriate. Instead, HR professionals may accept documents within the List B class of documents. Again, the documents must be seen in their original format and accepted prior to the commencement of employment.
Follow-up Right to Work checks will be required due to the temporary nature of the applicant’s stay in the UK. Further checks will normally be required when the employee’s temporary permission to be in the UK has expired and been renewed.
Documents in this category are divided into 2 groups.
List B – Group 1
|1.||A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question|
|2.||A current Biometric Residence Permit endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question|
|3.||A current Residence Card (including an Accession Residence Card or a Derivative Residence Card) issued by the Home Office to a non-European Economic Area national who is a family member of a national of a European Economic Area country or Switzerland or who has a derivative right of residence|
|4.||A current Immigration Status Document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer|
Here, HR professionals have a time-limited statutory excuse which expires when the employee’s permission to be in the UK expires. Follow-up checks will need to be carried out when the document evidencing their permission to work expires.
List B – Group 2
|1.||A Certificate of Application issued by the Home Office under regulation 17(3) or 18A (2) of the Immigration (European Economic Area) Regulations 2006, to a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old together with a Positive Verification Notice from the Home Office Employer Checking Service.|
|2.||An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.|
|3.||A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question|
For List B – Group 2, HR professionals have a time-limited statutory excuse against liability which expires 6 months from the date specified in the Positive Verification Notice. HR professionals should therefore carry out a follow-up check when this notice expires.
Once the documents have been obtained, HR professionals must check that the documents are:
- Genuine; and
- The applicant presenting the documents is the rightful holder; and
- The applicant is allowed to do the type of work detailed in their employment contract and Certificate of Sponsorship, where applicable.
It’s worth noting that the Home Office do not expect HR professionals to be forgery or immigration experts. However, there are some common sense questions that HR professionals should ask themselves when checking documents:
|1.||Does the photograph on the document match the appearance of the person before you? For instance, the document may be genuine but the applicant in front of you may not be entitled to it.|
|2.||Does the document appear to be genuine? Does it appear to have been tampered with? Again, expertise in forgery is not necessary but you will be amazed at the spelling mistakes some forgers make with the names of countries and the word ‘Embassy’.
For some EU documents that differ from one European country to the next, it can be difficult to determine which document is genuine and which is not? If presented with an EU document and you are not sure if it is genuine, I recommend making a quick visit to PRADO – Public Register of Authentic travel and identity Documents Online at http://www.consilium.europa.eu/prado/en/prado-start-page.html which is a great source of information in such instances.
|3.||Is the date of birth consistent with the appearance of the person in front of you? If not, further documents may need to be provided.|
|4.||Does the applicant still have valid leave to be in the UK? If the document evidencing their leave has expired, evidence should be sought and verified to establish if an application has been submitted to the Home Office for further leave to stay in the UK.|
|5.||Are there any work restrictions on the applicant’s ability to carry out the work stated in their employment contract? For instance, some students may take up employment though there may be restrictions placed on term-time employment.|
|6.||Still have doubts? Have you checked the reasons for any differences in names across documents? Such doubts need to be handled with care so as to prevent the employer/ employee relationship getting off to a bad start. There may be a plausible explanation for discrepancies which can be reasonably addressed by way of, for instance, inspection of an original marriage certificate, divorce decree, deed poll. If so, supporting documents will need to be photocopied and a copy kept on file.|
Copy and Retain
The applicant has provided their documents, the documents appear to be in order and the applicant has valid leave to be in the UK and can perform the duties required.
The final step to key. In order to demonstrate that the Right to Work checks have been properly carried out and prevent and liability against a civil penalty, HR professionals are advised to photocopy and retain the documents. This administrative area is where companies tend to fall short in their immigration responsibilities.
When photocopying documents, it is advisable to make a clear copy of each document. The copy should be one that cannot be altered and there needs to be a note made of date that the checks took place.
The copy of the document will need to be obtained in the personnel files either electronically or in hard copy.
For passports, HR professionals need not photocopy the whole documents, just the pages which contain details of the document expiry date, nationality, date of birth, signature, leave expiry date, biometric details and photograph, information showing the applicant’s entitlement to be in the UK and ability to undertake the work detailed in the employment contract. For other documents, it may be necessary to copy the document in full. For example, both sides of a Biometric Residence Permit and Marriage Certificate demonstrating a change in name.
By taking the above steps of Obtain, Check, Copy and Retain, HR professionals should find Right to Work checks to be less complex and less difficult to carry out. If in doubt, seek expert immigration advice!