Right to Work Guidance Update: Key Changes for Employers

Changes Effective from 13 February 2024

The government has recently updated its guidance on Right to Work checks, introducing significant changes that employers must be aware of. These changes aim to strengthen border security and ensure compliance with immigration regulations. The key updates in the guidance relate to:

Increase in Maximum Civil Penalty Fines

This penalty has now been increased to £45,000 per illegal worker for the first breach and £60,000 per illegal worker for repeat breaches, making non-compliance more costly for employers.

Right to Work Checks for EEA Citizens and their Non-EEA Family Members

Various changes have been implemented regarding right to work checks for EEA citizens and their non-EEA family members, particularly for individuals who are found to be residing in the UK without lawful immigration status. Employers must conduct Right to Work checks on EEA citizens and their non-EEA family members to ensure they have the necessary permission to work.

The guidance now clarifies that if an EEA citizen or non-EEA family member applies for a job but has not applied for the EU Settlement Scheme (EUSS) and does not have any other valid immigration status in the UK, they will be unable to successfully complete an employer’s right to work check.

The updated guidance specifies that eligible family members of individuals from Northern Ireland who were residing in the UK by 31^st December 2020, can apply for an EUSS family permit to join or visit their relatives in the UK. These permits are valid for a period of six months.

Another significant change in the new guidelines is that employers are now obligated to take appropriate action for existing employees who have not applied for the EUSS. This might involve seeking guidance from the Home Office or initiating termination procedures. It is strongly recommended that employers take specific legal advice if they find themselves in this situation.

Supplementary Employment

The updated guidance has been clarified regarding the requirements for Right to Work checks when individuals engage in supplementary employment and offers a valuable list of work visa categories, including skilled worker visas, that allow individuals to engage in supplementary employment if certain conditions are fulfilled.

Additionally, it clarifies that any overtime work performed with the original sponsor and within the same employment scope as specified on the individual’s certificate of sponsorship must adhere to the Working Time Regulations. Consistent with previous guidance, such overtime work does not contribute to the supplementary employment allowance.

Beyond verifying that the right to work check confirms the individual’s eligibility for supplementary employment, employers should also:

• Inquire about the individual’s existing supplementary employment. To ensure compliance with the 20-hour weekly work limit, employers should request written confirmation of the individual’s total supplementary employment hours.
• Verify supplementary employment conditions with the individual’s current sponsor. Obtain a letter or other supporting documentation specifying the job and occupation code of the sponsored employment, the individual’s normal working hours, and confirmation of their ongoing employment status.

Additional Considerations

• Online Checking Service: Employers can continue to use the online checking service to verify the immigration status of individuals.
• Documentation Requirements: The specific documents required for Right to Work checks may vary depending on the individual’s nationality and immigration status.
• Record Keeping: Employers must keep accurate records of Right to Work checks for a period of five years.

Conclusion

The recent changes to the Right to Work guidance have introduced several important updates for employers. By understanding and implementing these changes, employers can enhance their compliance efforts, reduce administrative burdens, and avoid costly penalties. Staying informed and seeking expert advice can help ensure that employers remain compliant with immigration laws.

For more detailed information and guidance, please visit the official UK Government website:

https://www.gov.uk/government/publications/right-to-work-checks-employers-guid