In September of this year, the Home Office updated its Employers Guide to Right to Work Checks.  Employers including their HR colleagues will be aware of their legal obligation to conduct Right to Work Checks on their employees before employment begins.  It is important to bear in mind that this obligation applies to employers employing staff under any type of contract be it an employment contract or even an apprenticeship.  If an employer is in possession of a Home Office Sponsor Licence, then they are also required to conduct Right to Work Checks against those who are not direct employees for example those who are self-employed.  This is so that they meet their Sponsor Licence obligations.

In certain circumstances, employers are able to use an Identity Service Provider (IDSP) in order to conduct digital checks for example against those holding British passports.  However, employers themselves are still responsible for ensuring that proper Right to Work Checks are provided and that responsibility does not shift to the IDSP.

Unless an exemption applies, employers are required to re-check the Right to Work for employees who have a time limited visa in the UK if they are to continue employing them after their current visa expires.  For employees who are British citizens or those who hold Indefinite Leave to Remain for example, follow up checks are not required.  If a follow up check is required, then this must be done before the employees permission to work in the UK ends otherwise there is a risk that the employer will be in a position that they are employing somebody who does not have the lawful right to work in the UK.  This can bring with it many sanctions, both civil and criminal.  Most Right to Work Checks are conducted online.

The Home Office also have a dedicated online Employer Checking Service which can be used to confirm that an employee has filed an in-time application and has continuing lawful ability to work in the UK.  We do come across cases where there is a change in the business structure for example by way of a business sale or purchase.  In the case of TUPE transfers where Skilled Workers are being employed, the new employer takes on the responsibility to conduct Right to Work Checks.  The consequences of falling foul of the Rules are extremely serious.  Fines are extremely high and if an employer is found to have knowingly employed a person without permission to work, then there can even be criminal liability.  This is not to mention the reputational damage a business can suffer in the event of adverse media coverage.  No doubt the business will also be named and shamed on the Home Office website and this is updated on a regular basis.

For advice on this or any other immigration issues, please do not hesitate to contact Sohan Sidhu.