Updates to Employer’s Guide to Right to Work Checks

In an effort to further prevent illegal workers in the United Kingdom and assist employers with conducting acceptable Right to Work checks, UK Visa and Immigration (UKVI) have updated their Employer’s Guide to Right to Work Checks guidance, with a new acceptable documents list, new information on maintaining a statutory defence to immigration law violations, and clarified rules for those undertaking work as a Volunteer and as an International Student.

An employer may be liable for a civil penalty if it employs someone who does not have the right to work in the United Kingdom. By undertaking the required checks prior to employment, an employer can establish a statutory defence should the authorities identify an illegal worker during the period of employment.

30-day Vignettes Policy Enforced

Since the roll out of the 30-day vignette in 2015, UK employers have allowed foreign employees to continue to work following the expiry of their 30-day vignette in the absence of a Biometric Residence Permit (BRP) card.

While this practice is still acceptable, UKVI have confirmed that a statutory defence will cease to exist upon the expiry of the 30-day vignette until a new Right to Work check has been completed on the basis of the BRP card.

Non-EEA Family Members of EEA Nationals

Non-European Economic Area (EEA) family members of EEA nationals have the option to not submit an application to confirm their right to work in the United Kingdom. UKVI will now accept the following documentation in place of such as application:

• Evidence of identity (passport, identification card);

• Evidence of relationship with EEA family member (marriage/civil partnership certificate); or

• Evidence that EEA national has permanent residence in the United Kingdom, or is exercising a treaty right in the United Kingdom.

Despite an employer holding validated copies, the new guidance now confirms that such documentation will not afford the employer a statutory defence, when previously this was at the discretion of the UKVI.

Tier 4 Students

Working Hours

Employers should rely on the employee’s BRP to determine the number of hours Tier 4 students are permitted to work during term time. To further aid employers, it has been clarified that a working week is deemed Monday to Sunday and a Tier 4 Student must not exceed the number of permitted hours of work within this period during term time.

Where permitted working hours are not stated on the BRP, it should be considered that the international student does not have the right to work in the United Kingdom and employment should not be offered.

Supporting Documentation

UKVI have further clarified that in addition to an immigration status document, one of the following forms of additional evidence must be obtained to form a statutory defence:

• A printout from the student’s education institution’s website or other material published by the institution setting out its timetable for the student’s course of study;

• A copy of a letter or email addressed to the student from their education institution confirming term time dates for the student’s course; or

• A letter addressed to the employer from the education institution confirming the term time dates for the student’s course.

Application Registration Card (ARC)

Since July 2017, new ARCs, which resemble BRPs, have been issued to asylum applicants while their asylum claim is pending.

UKVI have confirmed that the new ARC in addition to a Positive Verification Notice from the Employer Checking Service is acceptable to prove an individual’s right to work.

UKVI have confirmed that old style ARCs are still acceptable to prove an individual’s right to work and will continue to be acceptable until 2019. Although no date in 2019 is provided, it is expected that this will be clarified in due course.

Voluntary Work

The new guidance now clarifies that individuals who have been granted a UK visa can volunteer, but cannot undertake voluntary work.

Immigration Act 2016

The updated guidance confirms that the UKVI will continue to apply a civil penalty as a sanction in most routine cases involving the employment of illegal workers. However, in more serious cases, prosecution may be considered where it is deemed the appropriate response to the non-compliance.

The guidance has also been expanded to incorporate the provisions set out in the Immigration Act 2016 concerning Closure Notices issued to employers pending investigation, compliance orders and those applying for a licence within licenced sectors.

What This Means for Employers

Right to Work checks conducted on or after August 16, 2017 must comply with the updated guidance.

30-day Vignettes Policy: While the 30-day vignette rule has always been implied, it is now explicitly stated.  Therefore, employers should complete a right to work check with the BRP ahead of the expiry of the 30-day vignette.

Non-EEA Family Members of EEA Nationals: Although the UKVI has outlined which documents it will accept as proof of right to work for non-EEA family members of EEA nationals, since such documentation will not afford the employer a statutory defence, merely maintaining these documents is considered a significant risk. Therefore, where possible, employers should seek documentation from List A and/or B before allowing an individual to commence employment in the United Kingdom.

Voluntary Work: As the legal distinction between volunteering and voluntary work is complex, employers should contact their immigration professional before allowing an individual to conduct any voluntary work. Employers found to be employing an individual on a voluntary basis without the right to work may be liable for a civil penalty.

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].