Changes to right to work compliance: key takeaways for employers

The Employer’s guide to right to work checks (Employer’s guide) was updated on 8 February 2024. It applies to right to work checks completed on or after 13 February 2024.

The maximum civil penalty is now up to £60,000 per illegal worker

Any employer issued with a penalty notice on or after 13 February 2024 is subject to a maximum £45,000 civil penalty being imposed for a first breach of the scheme and a maximum of £60,000 per illegal worker for repeat breaches. The increased penalty will not apply if the illegal working identified in the notice ended on or before 12 February 2024. See our earlier article here for further information on this change.

Advice for employers on reporting illegal working

The guide now includes the following information on how to report illegal working identified during a follow-up right to work check:

“In the event a follow-up check confirms an employee is working illegally in your workforce, you are advised to take steps to terminate employment and report the circumstances to the Home Office via the UKVI Helpline on 0300 790 6268 select the employer’s option, Monday to Friday (excluding bank holidays), 8am to 8pm Saturday and Sunday, 9:30am to 4:30pm. You must state that you are reporting illegal working in your workforce and request a Unique Reference Number (URN).”

This advice is aimed at assisting employers to meet one of the mitigating factors that are relevant for calculating the level of civil penalty imposed for illegal working. However, in the context of a repeat right to work check, the employer will have a statutory excuse against liability for a civil penalty until the expiry date of the document they previously checked using a compliant right to work check process.

Provided the employer carries out the follow-up check before the existing statutory excuse expires, they should continue to be covered by it. However, prompt action may need to be taken to ensure the illegal working does not subsist beyond the expiry of the current statutory excuse, and to avoid the potential criminal sanction for knowingly employing an illegal worker.

Also, the guidance glosses over the reality that establishing whether an employee is working illegally can be complex. Where an employee cannot complete a follow-up right to work check in a straightforward way, we would suggest the employer considers taking immigration and employment advice before taking steps to terminate employment or contacting the Home Office.

Additional guidance for employers on the supplementary employment condition

Annex B to the Employer’s guide now also contains useful expanded guidance for employers on supplementary employment, including the following:

• Identifying which sponsored work routes, other than Skilled Worker, that the supplementary employment condition applies to;

• Summarising the requirements of employing someone under the auspices of the condition;

• Providing suggestions on how an employer can ensure the requirement applies and will not be breached, including:

• Ensuring a right to work check is conducted that confirms the supplementary employment condition applies to the individual;

• Verifying the supplementary employment conditions are met, such as obtaining a letter or other evidence from the individual’s sponsor confirming they are still employed, what their job description and sponsored occupation code is (only if the additional job is not in a shortage occupation) and their normal working hours; and

• Asking the individual if they are doing any other supplementary employment to ensure they will not do more than 20 hours a week in total.

The Employer’s guide now also states that if overtime is performed with the same employer and in the same employment as on the worker’s Certificate of Sponsorship, this will not be considered supplementary employment. However, the employer must comply with the Working Time Regulations and meet the relevant salary criteria of the route on which the worker is being sponsored.

Employers should consider taking advice on how overtime may impact immigration compliance for their sponsored workers, as this can depend on contract wording and compliance with applicable employment laws. Some general pointers in this area are as follows:

• Sponsored workers’ standard full-time contracted hours (or part-time equivalent) should be similar to those for non-sponsored workers in the same role;

• Employers should be cautious about expecting or requiring sponsored workers to work above their contracted hours, particularly if this happens regularly and is a significant amount compared to basic hours; and

• Employers should ensure that National Minimum Wage and working time requirements are met regarding any overtime carried out.

Updated right to work check processes for the EU Settlement Scheme

Last year, we saw a flurry of adjustments to the EU Settlement Scheme including major changes to policies on pre-settled status extensions, late applications and ongoing right to work considerations. For details of these changes and their impact on employers, see our previous article, Three reasons the EU Settlement Scheme is still relevant for employers. Although the previous wording in the Employer’s guide reflected these changes, it has been reviewed in the new version.

An employer can no longer signpost an individual without lawful immigration status to make an application to the EUSS and must take ‘appropriate action’

Previously if an employer discovered that an individual engaged prior to 30 June 2021 did not have lawful immigration status, they could signpost them to make an application to the EU Settlement Scheme within 28 days (provided they could show they had reasonable grounds for making a late application). The employer could then verify the CoA using the ECS.

The Employer’s guide has removed this provision. An employer is now required to ‘take appropriate action’, such as contacting the Home Office for support or taking steps to terminate employment.

Although the Employer’s guide no longer states that a person with a CoA is eligible to work, the position should remain that they eligible to work provided the CoA is verified using the online service.

Automatic extension of permission for pre-settled status holders

Employers are still required to complete a repeat right to work check for individuals with pre-settled status and should do so within one to two months before the expiry date of their permission.

Previously the Employer’s guide stated that from September 2023, pre-settled status extensions would have a two-year duration. The reference to two years has been removed, which may be because during 2024 the Home Office intends to automatically convert individuals to settled status where eligible. Once the Home Office starts doing this, at a repeat check (which the Home Office recommends doing within a month of the pre-settled status expiry) the individual’s online profile will show they no longer have an expiry date for their permission.

Threat of cancellation or shortening of status for pre-settled status holders

The guidance emphasises that pre-settled status may be cancelled if a person no longer meets, or never met, the requirements for it. The previous version of the Employer’s guide did not cover the situation where the person never met the requirements.

Employers should be alive to the possibility that an employee served with a notice of cancellation will lose their right to work within the timeframe stated on the notice. In certain circumstances, permission can be cancelled with immediate effect, but normally will be 60 days from the date of the notice.

Right to work check requirements can feel complicated because there are different requirements for different types of right to work. We have a handy right to work guide which provides a breakdown of these to aid employers as well as offering training and mock audits.

If you have any queries about these changes or general right to work compliance, please get in touch with a member of our Immigration Team.