Draft Code of Practice on Preventing Illegal Working Published

The situation

The UK Home Office has published a draft “Code of practice on preventing illegal working: Civil penalty scheme for employers,” the guidance document employers should refer to along with the “Employer’s Guide to Right to Work Checks”, which is yet to be updated since March 2021. Although this is not a finalised version (the final Code is expected to be published soon), this is the first look of the new Right to Work check system following the end of the Brexit transition period in December 2020 and the subsequent grace period on June 30, 2021.

A closer look - key changes

• Applicability. The new requirements set out in the draft Code will apply to all Right to Work checks conducted from July 1, 2021 onwards, including follow-up checks on existing employees (where required). Compliant Right to Work checks carried out prior to this date will fall under the previous version of the guidance.  
• EEA Nationals. The draft Code confirms that European Economic Area (EEA) nationals will additionally need to provide proof of their UK immigration status for Right to Work starting July 1, 2021 onwards. This includes status issued under the EU Settlement Scheme or the Immigration Rules, or evidence of a pending application under either system with a Positive Verification Notice obtained via the Home Office’s Employer Checking Service.
• List A and B documents. The draft Code significantly amends the lists of acceptable Right to Work documents to reflect the post-Brexit position:
  
  • EEA national passports and national identification cards will no longer be acceptable documents as evidence of Right to Work in the United Kingdom, except for Irish nationals for whom there is a separate entry in List A.
  • Specific reference is made to evidence of status or a pending application under the EU Settlement Scheme.
  • The slightly different arrangements with the UK’s Crown Dependencies, the Channel Islands and the Isle of Man, are reflected with new entries into both Lists.
  • A new acceptable document is the Frontier Worker Permit in List B.
  • All references to document types issued under the EEA Regulations have been removed.
• Digital immigration status. Throughout the draft Code are references to the Home Office’s roll-out of digital immigration status instead of a physical document, such as a Biometrics Residence Permit. Currently, this is most applicable for Pre-Settled and Settled Status under the EU Settlement Scheme, but the draft Code confirms this will increasingly be the case for other immigration types. Employers will therefore need to incorporate the Home Office’s Online Right to Work Check Service into existing Right to Work check procedures.
• COVID-19 concessions. Government concessions allowing virtual right to work checks, in place from March 30, 2020 until June 20, 2021, have been formalised in the Code in line with previously issued guidance. As a reminder, the Home Office has confirmed that retrospective checks do not need to be conducted where a compliant COVID-19 adjusted check was carried out. Employers will continue to have a defence against civil penalty if the checks completed are compliant.

Impact

• Be prepared to update internal Right to Work procedure documents. When the finalised guidance is published, employers will need to review internal process and procedure documents to ensure that these reflect the updated documentation which must be viewed for checks conducted from July 1, 2021.
• Consider providing staff refresher training on the updated guidance. Ensure all staff who conduct Right to Work checks are fully familiar with the new documents to request from EEA nationals and how these checks can be carried out, including the Online Right to Work Check Service.
• Contact Fragomen. Our dedicated Compliance & Audit team is on hand to discuss, review and assist with navigating these changes, as well as amending a company’s Right to Work checking procedures and compliance programme, and providing training where desired.

Background

Right to work checks are a mandatory part of the employee hiring process in the United Kingdom. How these checks are carried out for EEA nationals is changing as a result of the United Kingdom leaving the European Union, the end of the Brexit transition period in December 2020 and the subsequent grace period on June 30, 2021.

Employers must continue to check the prescribed documents set out in the Home Office’s employer guide. It remains an offence to knowingly employ a foreign national without the right to work in the United Kingdom. Non-compliance can lead to civil penalties, among other sanctions.

Access Fragomen’s dedicated page for COVID-19 updates for current information.

Looking ahead

This is a draft document published by the Home Office. It is therefore not in final form and so its contents should be read with a degree of hesitancy. Nevertheless, it gives the clearest indication so far of what employers should expect in the finalised guidance. Employers should therefore begin to review existing internal procedure documents or process flows, as well as staff training, in order that these can be readily updated with the new documents to be requested in Right to Work checks. Early assessment of these will assist in ensuring employers are conducting compliant Right to Work checks from July 1, 2021.

This alert is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen or send an email to [email protected].