Important update on right to work checks requirements for UK Employers

All employers in the UK have a responsibility to prevent illegal working. The Home Office provides right to work guidance, advising employers how to conduct right to work checks, and how to protect themselves if an employee is discovered to be disqualified from working in the UK. The potential implications of failing to adhere to these requirements can be disastrous for employers, with sanctions potentially including:

• Civil penalties;
• Criminal sanctions for members of staff who are aware of, or ought to have been aware of, illegal working;
• Sponsor licence revocation (and visa curtailment for sponsored migrants); and / or
• Reputational damage.

The Home Office published new right to work guidance on 08 February 2024, for right to work checks conducted on or after 13 February 2024. The key changes in the guidance are:

1. Increased maximum civil penalties for non-compliance with the right to work checking requirements. Employers will now be liable to a fine of £45,000 per illegal worker (up from £15,000) and £60,000 per illegal worker for repeat breaches (up from £20,000).

2. Removal of the 28-day concession period. Historically, where an employer discovered that an EEA national (or non-EEA national family member) employed on or before 30 June 2021 had not applied to the EU Settlement Scheme, the employer had 28 days’ protection (during which period immigration enforcement would not be taken) to allow the employer to support the employee with a late application to the EU Settlement Scheme. This 28-day concession has now been removed. The guidance now states that, "if an employer identifies an existing employee who no longer has a right to work, they are required to take the appropriate action. This may include contacting the Home Office for support or taking steps to terminate employment".

3. Additional duties for employers providing supplementary employment. Workers under certain visa categories (including Skilled Workers, Senior or Specialist Workers and those sponsored under a Government Authorised Exchange) are permitted to carry out supplementary employment (in addition to the job specified on their Certificate of Sponsorship). Employers providing supplementary employment must now secure additional evidence to verify that the employee is complying with the terms of their sponsored role, and they are adhering to the restrictions on supplementary employment in this additional role (e.g. the role is in the same profession, is limited to 20 hours a week and is undertaken outside the contracted hours for their sponsored role).

The Home Office’s guidance is regularly updated, so it is vitally important that employers familiarise themselves with changes, as and when these take place. Please do not hesitate to reach out to Doyle Clayton’s immigration team if you have any queries or concerns. We regularly assist clients with their right to work checking processes through internal audits and training.