Civil penalties for employing illegal workers are set to triple in January so what can HR be doing now to help with ‘right to work’ checks compliance? We’ll ask an immigration specialist.
From January, fines for a first breach will increase from £15,000 to £45,000 for each employee found to be working without permission or in breach of their visa conditions. For subsequent breaches - repeat offences - the fine triples from £20,000 to £60,000 for each employee for each occasion.
When it comes to enforcement, the Home Office has powers to conduct onsite compliance inspections on any UK employer without notice. That’s the focus of an article by Personnel Today that appeared on their website last week called: ‘Right to work audits: How HR teams need to prepare’. It’s a detailed piece looking at the various types of right to work checks when they apply and the evidence you’ll need to have to hand to demonstrate full legal compliance in the event of an inspection.
So let’s consider some of the key steps when it comes to right to work checks, and some of the mistakes we’re seeing clients make. Alex Wright is one of the lawyers in our immigration team and earlier he joined me by video-link from Manchester to discuss it. I started by asking about those civil penalties:
Alex Wright: “Yes, civil penalties have definitely been a significant headline. So, a civil penalty is what can happen to an employer if they are found to have an illegal worker on their premises and at present those fines start at £20,000. It’s possible to mitigate them under a number of circumstances if you have no previous offences, if you comply with Home Office investigations, we can normally get that down to £7,000 if you pay promptly. The issue is the Home Office very much wants to signify that they are clamping down on illegal working and the top rate of fine is tripling, so it's going up to £60,000, we think, by the end of this year.”
Joe Glavina: “A section of that article looks at the different types of right to work checks and when they apply, which can be confusing. This isn’t new, but I gather some clients are still struggling with the differences and getting this wrong?”
Alex Wright: “Right to work checks were for a very long time were pretty solid, nothing changed very much, and then during COVID there were a number of changes that went in and out and we are in a position now where we have, essentially, three different types of right to work checks you can conduct. One is the ‘old school’ manual check where if you want to have a look at a passport, or an immigration document that is still in date, you can rely on those. I must point out that is increasingly uncommon. It's perfectly common to see that for British and Irish nationals, checking their passports, but for third country nationals that is becoming increasingly uncommon as Home Office methods of checking IDs have changed over the years. There is the IDVT check, the ID verification technology check, which is increasingly common but it is only for British and Irish nationals and that's where they use an app, or a service provider with facial recognition technology, who reviews their passport and sends a report to the employer. Then thirdly, there is the digital check which is for non-British and Irish nationals whereby they have registered either their passport or an immigration status document with the Home Office online and they generate what is known as a share code to share that with their employer and that produces a report that confirms their status, any conditions on their leave, and when that leave is due to expire. Something employers do need to be aware of, and we have seen this in the past, is where employers believe they can farm out the digital checks to companies providing IDVT services. That is not something that they are able to do and Home Office guidance is clear on that. So, whilst you can ask an IDSP, an ID service provider, to run your checks on British and Irish nationals, employers must keep checks for non-British and Irish nationals in-house, they have to be done by themselves.”
Joe Glavina: “This is Personnel Today’s article and is clearly focused on HR – the title is: ‘How HR teams need to prepare’. In your experience working with clients every day on this, how involved are HR teams?”
Alex Wright: “HR are massively involved in immigration and recruitment. They tend to often be the first line of people helping workers and their families come over to the UK, they'll be responsible for liaising with us to get the documents we need to do their applications. HR people are vital to the immigration process and are quite often the people we are in contact with most frequently with our clients. I would say that one thing that HR should be aware of is institutional memory. HR teams can be huge, there can be people moving through them taking on roles, moving on through different positions in their company, and one of the things that we have seen in the past is where someone leaves a team and then the team is unsure how to do their immigration work because all of that responsibility fell on one or two individuals. So, I would say if you are in a larger HR team, who does your immigration? How can they share that knowledge? How can you get resources in place whereby if, for some reason, they were not able to come in tomorrow and you had an immigration issue, would you be able to handle it? So, I’d just say, make sure that your team has a broad base of immigration knowledge and that doesn't all fall on the shoulders of one person if it can be avoided.”
Joe Glavina: “Anything else Alex?”
Alex Wright: “Right to work checks seem imposing and there are a lot of rules, a lot of regulations, a lot of appendices, a lot of lists of documents but, fundamentally, the processes are simple. If you get the processes in place you should not be in a position where you are risking a financial loss to your business. It's simple processes, it’s simple training, and it's easy to get right, and if there's anything you want support on we have tonnes of modules on this, we have tonnes of training and resources and we are absolutely able to assist.”
That article by Personnel Today is called: ‘Right to work audits: How HR teams need to prepare’. We’ve put a link to it in the transcript of this programme.
- Link to Personnel Today article: ‘Right to work audits: How HR teams need to prepare’