New Employer Guidance on the Prevention of Illegal Working
It has long been the case that employers have had obligations to prevent illegal working. All employers irrespective of size and administrative resource, are subject to an existing legal requirement to check that all of its employees (including those of British origin) have a right to work in the UK. Employers who fail in their obligations relating to the prevention of illegal working can face civil and criminal proceedings which include significant fines of up to £20,000 and in the worst cases, imprisonment.
The UK’s new immigration system came into force at the start of this year which coupled with the end of free movement, and on 30 June 2021 the deadline for EU migrants to apply to remain in the UK under the European Union Settlement Scheme (EUSS) expired. To tie in with this deadline, a new draft Code of Practice on the prevention of illegal working was published on 11 June, complemented with updated guidance on the prevention of illegal working for employers a week later.
These documents explain how the Government will administer the civil penalty scheme in respect of right-to-work checks from 1 July 2021 onwards and the ways in which right to work checks must be conducted from this date. The documents incorporate the most significant changes to the right-to-work checking system since 2008 and management and HR teams need to familiarise themselves with the new ways of working. We would recommend that all employers read both the Code and the Guidance in full.
The Code of Practice and associated guidance is relevant to all employers and the key provisions can be summarised as follows:
- The draft code is to apply where an initial or repeat check on an existing employee is required on or after 1 July 2021
- Employers will no longer able to accept EU/EEA passports or National ID cards (except for a passport/passport card from Ireland) as valid proof of right-to-work from 1 July 2021
- In respect of EEA and Swiss citizens hired prior to 30 June 2021; if the check was made prior to 1 July, a copy of their passport or national identity card will still be sufficient to meet the legal requirements.
- There is no need to retrospectively check the status of any such EEA employee who entered into employment up to and including 30 June 2021 provided that a previous check has been carried out to ascertain right to work status. (It is worth noting that the obligation to check right to work status becomes live at the pre-employment stage, and not following the commencement of employment).
- The lists of accepted documents which employers can rely on to ascertain right to work status from 1 July 2021 onwards have been amended. It is important for employers to familiarise themselves with the new “List A” and “List B” as there are a number of key changes.
- The physical documents which may be accepted as evidence of status now include, amongst other things, an Irish passport card, a Frontier Worker Permit and a Certificate of Application from UKVI confirming an application under the EU Settlement Scheme was submitted on/before 30 June 2021.
- Employers must not discriminate when conducting right to work checks.
- Employers should conduct right to work checks on all potential employees, including British citizens.
The guidance also helpfully sets out in detail how an employer should conduct a right to work check for EEA and Swiss citizens recruited on and after 1 July 2021 (which includes detailed guidance on how to conduct a valid online right to work check using a share code to verify someone’s EUSS digital status) and provides for a new ‘transitional measure’ relating to EEA nationals who were existing employees as at 30 June 2021.