Right to work checks: New Government Guidance
On 16 August 2017, the Home Office released new guidance for employers for conducting right to work checks.
On 16 August 2017, the Home Office released new guidance for employers for conducting right to work checks. It is important that you follow this each time someone starts working for your organisation, when you need to establish that the individual has the right to work in the UK (and retain the evidence that you have done so).
While the documents which can be accepted as evidence of a person’s right to work in the UK have not changed (contained on what are known as List A and List B), the updated guidance includes some new details and advice for employers.
- Information in relation to Application Registration Cards (ARC) which are now issued as biometric documents containing an expiry date;
- Advice in respect of voluntary work and being a volunteer;
- The new illegal working measures introduced by the Immigration Act 2016 including closure notices, compliance orders, additional immigration checks in the licensing regimes for taxis and private hire vehicles and alcohol and late night refreshments; and
- Employing international students.
The guidance also includes advice in relation to non- EEA citizens who have a right to work in the UK as a result of being the family member of an EEA national. The guidance states that, as there is no mandatory requirement for family members of an EEA citizen who are resident in the UK to obtain documentation to evidence their right to work from the Home Office, it is open to the particular individual to demonstrate the existence of that right by other means. Employers may choose to accept alternative evidence, other than the documents on List A and List B.
It states that in these circumstances, employers could seek to see the following:
- Evidence of the applicant’s own identity – such as a passport; and
- Evidence of their relationship with the EEA family member – e.g. a marriage certificate, civil partnership certificate, or birth certificate, and
- Evidence that the EEA national has a right of permanent residence in the UK or is one of the following if they have been in the UK for more than three months:
- Working e.g. employment contract, wage slips, letter from the employer; or self-employed e.g. contracts, invoices, or audited accounts; or
- Studying e.g. letter from the school, college or university and evidence of sufficient funds;
- Self-sufficient e.g. bank statements; and
- If the family member is studying or financially independent, you must also see evidence that the EEA national and any family members hold comprehensive sickness insurance in the UK (i.e. private medical insurance policy or an EHIC card).
However employers should be aware that even if the above evidence is obtained, an employer will not establish a statutory excuse against a penalty should the individual be found to be working illegally. Therefore, employers must be confident that the employee in question has a genuine right to work under EU law to satisfy themselves that there is no risk of illegal working, and therefore a civil penalty.
It is important for employers to ensure that they use the correct and most up to date Right to Work guidance to avoid potentially costly errors.
If you are thinking about seasonal workers and have concerns about right to work checks, you can find our advice within our 28 October 2016 Insights page article.
Elaine McIlroy (firstname.lastname@example.org) is a Partner and Erin McLafferty (email@example.com) is a member of the Employment Pensions and Immigration team. Both are based in Glasgow.
Having a rigorous process in place to ensure that right to work checks are properly carried out is critical. If you are worried about whether your processes are fit for purpose we would be happy to advise you.