Windrush generation – incorporated into new Right to Work guidance

What are the Right to Work guidelines?

While right to work checks aren’t the most exciting part of running a business and taking on new staff, it is important that employers carry them out correctly. 

In terms of criminal penalties, the business could be given an unlimited fine and/or anyone who was involved in the person’s recruitment and who has reasonable cause to believe that they were an illegal worker could be imprisoned for up to 5 years.

In terms of civil penalties, the business could be fined up to £20,000 per illegal worker employed.

How do businesses follow the Right to Work guidelines?

To avoid a civil penalty, employers must carry out right to work checks on all new employees (including British nationals) by examining their ID documents. Which documents are suitable for these purposes will depend on the individual’s nationality and immigration status, but could include their passport, national identity card and/or their biometric residence card.

Once the employer has examined the original ID document (and are content that these show the individual has the right to work in the UK), they must copy them and certify the copies and then store the copies securely in an unalterable format (for example, as a PDF or a hard copy print-out). The employer should retain the copies for the duration of the individual’s employment and then a further two years or until they have been inspected by a Home Office official, whichever is sooner.

If an employer does this, they will have established a “statutory defence”. This means that if the Home Office discovers that they are inadvertently employing someone without the right to work in the UK they should not be fined.

It is important that employers carry out right to work checks properly. Updated government guidance issued recently (which can be found here) provides some much-needed clarification on the steps that employers should take in certain circumstances (including when taking on “Windrush generation” employees) to establish a statutory defence.

What are the changes to the Right to Work Guidelines for the “Windrush generation”?

The main changes are as follows: 

1. Clarification of the steps employers should take in relation to employees who do not have acceptable right to work documents but who arrived in the UK before 1973 (the “Windrush generation”):

• The “Windrush generation” is the term used to describe people who were born in Caribbean countries and arrived in the UK between 1948 and 1973.  
• In 1971, all Commonwealth citizens who were already in the UK were granted indefinite leave to remain i.e. the right to continue living in the UK indefinitely. However, the government didn’t keep records of who had been granted indefinite leave to remain or issue the individuals with paperwork confirming this. 
• In April, there was a public outcry when it became widely known that individuals from the Windrush generation were being refused jobs or dismissed from their existing jobs (often jobs they had held for many years) because they couldn’t provide documents proving their right to work in the UK.
• The new guidance addresses this issue, advising that if a Windrush generation individual cannot provide acceptable right to work documents then the employer should contact the government’s Employer Checking Service (ECS) to verify the individual’s right to work status (making sure to get the individual’s permission to do so first).
• The newly-established Home Office “Windrush taskforce” will be notified when the employer contacts the ECS. The taskforce will then contact the individual to obtain details of their circumstances and (if relevant) make arrangements for their immigration status to be formalised.
• The ECS will then be able to confirm the individual’s right to work in the UK by issuing the employer with a Positive Verification Notice (PVN). The PVN will provide the employer with a statutory excuse for 6 months, starting on the date of the PVN. Once they have the PVN, the employer can allow the individual to start/continue their employment with them.
• Towards the end of this six-month period, the employer should carry out another right to work check. At this stage, the individual may have obtained a valid document evidencing their right to work in the UK. If not, the employer should again contact the ECS for another 6-month PVN.
• Once the individual has received documentation from the Windrush taskforce, the employer should be notified of this by the Home Office.

2. Clarification about the right to work checks employers should carry out on existing employees:

• The guidance confirms that employers do not have to carry out retrospective right to work checks on individuals who started their employment with them (and have been continuously employed by them) since before 29 February 2008. 
• This also applies to individuals who have been employed continuously since before 29 February 2008 and who transferred to their current employer by way of a TUPE transfer.
• For employees who were taken on on/after 29 February 2008, follow-up right to work checks only need to be carried out when the individual has a time-limited immigration status.

3. Clarification about the right to work “grace period” when there has been a TUPE transfer of employees

• If a business acquires staff by way of a TUPE transfer (for example, when it buys another business), it must carry out right to work checks on all acquired workers who were taken on by the acquired business on/after 29 February 2008. This is because an employer cannot rely on right to work checks carried out by another organisation and so will not be able to establish a statutory defence if they are found to be employing an illegal worker.
• Employers have a 60-day grace period to carry out new right to work checks on any acquired employees. This 60-day period starts to run on the date of the TUPE transfer.
• The new guidance confirms that the 60-day grace period applies in all situations where there is a “relevant transfer” (as defined by Regulation 3 of the 2006 TUPE Regulations), even where the transferring business is subject to “terminal” insolvency proceedings (for example where the company is being wound up and its assets are being distributed to creditors).

4. End of restrictions on Croatian nationals

• On 1 July 2018, restrictions on Croatian nationals working in the UK were lifted. As a result, Croatian nationals no longer need to obtain worker authorisation from the Home Office before taking up employment in the UK.
• This means that Croatian nationals can now demonstrate their right to work in the UK in the same way as other EU nationals, that is, by providing their passport or national identity card, with no need for them to provide additional registration documents. 
• Employers who have already carried out right to work checks on existing Croatian employees can continue to rely on these checks i.e. there is no need for them to re-do the right to work checks because of the change in the treatment of Croatian nationals.

If you have any questions about these changes and how they might affect you or your organisation, please get in touch with Elisabeth Kynaston or another member of our immigration team on 0207 329 9090 or email immigration@doyleclayton.co.uk.