Right to work checks: key developments and actions for employers

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The Home Office has just published updated guidance on the increased penalties for employers found to be employing illegal workers. Here we summarise the latest developments and the various actions which employers may wish to consider. 

Latest developments

  • On 7 August 2023, the Home Office announced that employers could face fines of triple the amount of the current penalties for illegal working. From the start of 2024:
    • for a first offence finding of illegal working, employers will be subject to a civil penalty of £45,000 (currently £15,000)
    • for repeat offences to be fined up to £60,000 per illegal worker (currently £20,000).
  • Since 1 July 2021, EEA and Swiss nationals (and their family members) have had to demonstrate their right to work in the United Kingdom in the same way as third-country nationals. They can no longer rely on their national identity documents and their right to freedom of movement under EU law.
  • Whilst retrospective right to work checks are not required, existing EEA and Swiss nationals may lose their right to work if they cannot satisfactorily evidence that they were present in the United Kingdom by 31 December 2020 or have status under the EU settlement scheme.
  • Further right to work checks are not required for individuals assessed under the prescribed manner of the temporary Covid-19 checks between 30 March 2020 and 31 August 2021. The previous checks will remain valid, and you will be able to maintain a defence against a civil penalty. 
  • The electronic right to work checking scheme has been a mandatory part of the regime since 6 April 2022 for biometric card holders.

What do employers need to do?

  • Closely monitor the immigration status of all employees. In light of the increased fines, employers should consider conducting wider, all-staff right to work audits.
  • Ensure any EEA/ Swiss nationals and/ or family members who commenced employment on or after the 1 July 2021 have the appropriate right to work in the United Kingdom either under the new immigration system (such as a points-based visa or frontier worker permit) or the EU settlement scheme.
  • Take steps to identify those who have pre-settled status under the EU settlement scheme and ensure that an appropriate follow-up right to work check is diarised. If any individuals have missed the deadline for applying to the EU settlement scheme advise them to seek legal advice. 
  • Make provisions so that any EEA/ Swiss national and family members are required to notify you immediately if they receive notice of immigration enforcement from the Home Office.
  • Ensure the relevant recruitment/ HR teams and line managers are familiar with and understand the new requirements.
  • Ensure you have robust, effective, and legally compliant systems in place.

How can Gateley help?

  • We can assist companies with conducting a right to work audit, advising on the different documentation which employees may have provided and the status of employees.
  • We can review your existing recruitment and right to work processes to ensure that these are compliant and will highlight any potential immigration issues at the earliest possible stage mitigating any risk.
  • We can advise on how you should operate your recruitment and right to work processes to avoid potential pitfalls and risks (including the risk of discrimination).
  • We can assist you to manage any immigration and associated employment risks.
  • We can provide bespoke assistance and guidance on dealing with complex issues such as non-EEA family members of EEA/ Swiss nationals; EEA/ Swiss nationals who may not have yet accessed or are unable to access the EU Settlement Scheme; frontier workers and business travel from and within the EU.
  • We can provide training and guidance to familiarise you with the new penalties if you do not meet the current requirements and ensure you are fully equipped to deal with the regime and frequently encountered issues.

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