Employers are once again facing fines if they fail to check their employees’ eligibility to work in the UK.
For much of 2020, with the UK in the grip of the Covid pandemic, the Home Office did not issue any right-to-work fines but in the final quarter of last year 77 fines were issued.
It is expected that the number of investigations will rise as lockdown restrictions ease and they may increase substantially after 30 June – which is when EU employees will need to show proof of eligibility to work in the UK.
Right-to-work penalties are issued to businesses if they employ someone they knew, or had reasonable cause to believe, did not have the right to work in the UK. Employers must see an original passport or birth certificate and keep copies of necessary documents with signatures and dates.
In the most serious cases, individuals at businesses could even be imprisoned for up to five years or face an unlimited fine if they knew or had reasonable cause to believe that they were employing an illegal worker. According to immigration law experts this criminal sanction could extend to a director, manager or secretary of the business or a person purporting to act as a director, manager or secretary, so it could be far reaching in scope.
As for civil penalties, businesses could face fines of up to £20,000 per illegal worker.
Chetal Patel, partner at City law firm Bates Wells, told Personnel Today that businesses employing workers from abroad should be prepared for unannounced visits by Home Office officials: “We know that the Home Office has also started to resume compliance visits now on organisations that hold sponsor licences, so sponsors need to be prepared for unwelcomed visits. During these visits, immigration officers will check a sponsor’s system in relation to the prevention of illegal working, including what processes are in place and whether the correct documents are retained.”
After the 30 June deadline, EU employees will need to show proof of eligibility to work in the UK under the European Union Settlement Scheme (Euss). Bates Wells predicted that the Home Office would ramp up compliance activity from 1 July and warned that employers needed to proactively carry out checks from then or risk being fined.
Patel said: “For employers using the Covid-19 temporary right-to-work check measures, the Home Office has been clear that employers must carry out retrospective checks within eight weeks of coronavirus measures lifting. I’d recommend that employers keep a separate list of those staff for whom adjusted right to work checks have been undertaken; that way, the list can act as a quick reference point when the retrospective checks need to be completed.”
Until 30 June employers can continue to use European Economic Area and Swiss passports as evidence of an individual’s right to work in the UK.
Patel warned that companies were still in the dark about procedures after June. “We’re still waiting for the Home Office to release guidance on document checking for EEA nationals from 1 July. Businesses need time to prepare and adjust so it’s important that the new guidance is released sooner rather than later.”
Brexit has subjected businesses to substantially more red tape when employing workers from the EU. This will make the process of sponsoring a worker under the settlement scheme more costly and time-consuming for the hiring company.
Patel said: “Hiring talent from the EU could prove hugely costly to businesses if sponsorship is the only option.”