To maintain a statutory excuse against liability for an illegal working civil penalty in the context of a less straightforward follow-up right to work check, you may need to use the Employer Checking Service (ECS). There are specific requirements to be met when doing this, and employers don't always meet them. This article outlines what the requirements are, and gives some tips on how to avoid costly pitfalls.
When do you need to do a follow-up right to work check?
A follow-up right to work check will be required before the expiry of your employee's time-limited immigration permission. Also, if they had an outstanding in-time immigration application or related administrative review or appeal when their last check was completed, a follow-up check will be required before the date specified on their online right to work check or positive verification notice (PVN) from the Employer Checking Service (ECS). A PVN normally gives you a 6-month statutory excuse from the date shown on the notice.
We would suggest diarising reminders at 90, 60 and 30 days before the expiry of the existing statutory excuse to ensure there is ample opportunity for your employee to demonstrate their ongoing right to work, and to provide time for any actions to be taken on your business's side, e.g. preparing and submitting an application under a sponsored work route.
The following employees will not be subject to follow-up right to work checks:
- British and Irish citizens;
- Those who are settled in the UK;
- Those with pre-settled status under the EU Settlement Scheme;
- Those who are exempt from immigration control.
For these individuals, a correctly documented right to work check verifying their status will provide you with an ongoing statutory excuse against liability for an illegal working civil penalty. This will last for the duration of their employment.
When can you contact the Employer Checking Service to verify ongoing right to work?
At the time a follow-up right to work is due, your employee may claim to have an ongoing right to work despite not being able to successfully complete a digital, online or manual right to work check.
If this happens, you must give your employee a reasonable opportunity to prove their right to work.
You can maintain a statutory excuse if you contact the ECS to verify your employee's right to work, but Home Office guidance confirms you should do this only if the following circumstances apply:
- You are reasonably satisfied that the employee has:
- An outstanding in-time application to extend or vary their permission;
- A pending in-time appeal or administrative review;
- Information indicating they are a long-term lawful UK resident who arrived before 1988; or
- A technical issue with their eVisa or digital immigration status which has produced an incorrect share code, an incorrect online right to work check result or a failure to generate a share code; and
- You contact the ECS on or before the date your existing statutory excuse is due to expire.
The 'grace period'
If you meet the requirements for using the ECS, your statutory excuse will be extended beyond its expiry date for a period of up to 28 calendar days. This 'grace period' is intended to allow you to obtain a Positive Verification Notice (PVN) from the ECS.
If during the grace period or PVN period, the employee provides evidence of a successful case outcome with permission to stay granted, then you can maintain a statutory excuse by conducting a follow-up right to work check in the normal way.
However, if during the grace period you receive a Negative Verification Notice (NVN), the grace period automatically ends and you would no longer have a statutory excuse.
Please note, the grace period does not apply to pre-employment checks.
What are the common pitfalls to avoid when using the ECS for right to work checks?
The mistakes we most commonly see employers make with establishing or maintaining a statutory excuse when using the ECS are:
- Failing to correctly assess whether an application or connected administrative review or appeal has been made in-time and is still outstanding;
- Failing to document (adequately, or at all) how they are 'reasonably satisfied' that the employee continues to have the right to work;
- Failing to submit the ECS request before the expiry of the existing statutory excuse; and
- Failing to appreciate the 'grace period' doesn't apply to pre-employment right to work checks.
Note that verbal confirmation from your employee is not enough to be reasonably satisfied of your employee's ongoing right to work. Gathering, assessing and retaining documentary evidence is essential, because this will place you in the best position to expect to receive a PVN. Also, the grace period won't be established if you ignore this requirement.
What are the possible immigration consequences of not getting the follow-up check right?
The ultimate consequences can be severe, including:
- Loss of your statutory excuse;
- Exposure to a civil penalty of up to £60,000 per illegal worker;
- Refusal of a sponsor licence application; and/or
- Revocation of an existing sponsor licence.
When to seek advice
If a follow-up right to work check involves an ECS check, proceed with caution. You should consider taking immigration advice if:
- You are not sure about the process for successfully retaining a statutory excuse while carrying out an ECS check;
- You are not sure whether the documentation your employee has provided is enough to be reasonably satisfied of their ongoing right to work; and/or
- Your employee is unable to provide any documentation.
If you can't be satisfied that your employee has an ongoing right to work, you should also consider taking immigration and employment law advice as soon as possible – ensuring this happens ahead of terminating employment, and ahead of your existing statutory excuse expiring.
Need more help?
If you need assistance with follow-up right to work checks, or right to work compliance more generally, please get in touch with a member of our Immigration Team.
