The UK Government has implemented significant changes to the Right to Work regime which apply to verification checks conducted on or after 13 February 2024.
These updates encompass both revised guidance for employers conducting checks as well as a significant increase in civil penalty fines for illegal working.
Changes in Right to Work Guidance from 13 February 2024
Understanding the changes is crucial for employers to ensure compliance and avoid enforcement action. The key updates are as follows:
Increased civil penalties
A significant aspect of the update involves a substantial increase in civil penalties for employers who fail to comply with their Right to Work obligations. The new penalty structure with effect from 13 February 2024 is as follows:
- First breach: Up to £45,000 per illegal worker, compared to the previous £15,000.
- Repeat breach: Up to £60,000 per illegal worker, compared to the previous £20,000.
Use of IDSPs & reliance on statutory excuse
The new guidance also addresses limitations on the availability of a statutory excuse when using third parties in conducting Right to Work checks. The guidance confirms that other than when IDSPs are used to perform Right to Work checks on British or Irish citizens with a valid passport or Irish passport card, it will not be possible to establish a statutory excuse against liability for a civil penalty if the manual document check or online Right to Work check is performed by an IDSP.
Streamlined online Right to Work checks
The guidance clarifies the use of online checking services for certain visa categories, simplifying the verification process for employers.
Clarification on EEA nationals and their family members
The guidance addresses the change in rules of EEA nationals and their family members post-Brexit. It outlines specific procedures for verifying their right to work, considering their settled or pre-settled status.
EEA nationals employed on or after 1 July 2021 must prove their eligibility to work through standard Right to Work checks. However, the situation for EEA nationals employed prior to 1 July 2021 has been less clear, most notably since there has been no requirement to conduct retrospective Right to Work checks on such workers and in light of a process through which the worker could be encouraged to apply for lawful status within a 28 day grace period.
While previously, when an employer discovered that an EEA national or non-EEA family member does not have lawful immigration status because they should have applied to the EU Settlement Scheme (EUSS) but have not done so, the 28-day concession applied. The new guidance confirms that where an employer becomes aware that an existing EEA worker has lost their UK Right to Work, the employer must take appropriate action, which could include terminating their employment without providing any grace period to regularise their status.
Supplementary work & sponsored workers
The updated guidance provides detailed instructions for employers who engage sponsored workers for “supplementary work” outside their primary sponsored role. Additional verification steps are now required to ensure compliance when employing persons for up to 20 hours a week who are otherwise employed by a licensed sponsor, known as “supplementary employment”.
For example, a worker who is employed and sponsored by ‘Organisation A’ but wants to work additionally for another employer (‘Organisation B’) is said to be in supplementary employment. Under UK immigration laws, they are allowed to do this in certain situations, which include the following:
- The employment for Organisation B is either in the same profession and at the same professional level as the job for which the Certificate of Sponsorship was assigned, or it is in a job on the shortage occupation list
- The employment for Organisation B is for no more than 20 hours a week
- The employee is still employed by Organisation A in the position for which they are sponsored, according to the Certificate of Sponsorship
- The employee does not work more than 20 hours a week for any other organisation than Organisation A
- The 20 hours per week are worked on days other than the employee’s contracted hours with Organisation A
According to the guidelines, overtime worked for Organisation A is not included in the 20 hours mentioned above.
Under the new guidance, in addition to performing standard Right to Work checks – ie either through the Home Office online service, manual document checks, or IDSPs – employers are now required to take further steps to guarantee that the worker satisfies the conditions on supplementary employment. This could include the sponsored worker providing to Organisation B supporting documentation (such as a letter) from their sponsor (ie Organisation A) to verify that employee remains employed by their sponsor, organisation A, and that they continue to follow their regular working hours, their sponsored employment’s job description and occupation code.
To ensure the employee will not be working more than 20 hours per week in total for supplementary employment, the guidelines also advise that ‘Organisation B’ asks the worker if they are performing any other supplementary jobs with another employer. Obtaining and retaining this written confirmation will be important in the event of a Home Office audit.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.
