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Immigration and Brexit Update (at least it’s not Covid-related)

Not every important update this year is related to the virus! Businesses need to keep a watchful eye over other major changes associated with the UK exiting the European Union on 31st December 2020.

Our June Update, focused on what the new immigration system would look like and the legislation that was working its way through parliament.

Whilst the legislation is still progressing, and is therefore subject to changes, it is important to now think about what your business should be doing practically to make sure you do not incur any penalties.


Right To Work Checks

Companies have a legal obligation to check that ALL employees have a right to work in the UK BEFORE they start employment with the Company and record evidence of these checks. A list of what documentation is acceptable can be found here: List of Acceptable Documentation but for most people a copy of their British Passport will be enough. (We would recommend taking a copy of the photo page, dating it and confirming that you had checked it for validity.)

Going forward for those who do not have a British Passport, accepting a copy of their European Passport may not be enough (it will not be acceptable after 31st December 2020). Whilst the Government has said that they do not expect employers to re-check employees, this would seem prudent particularly where you do not have a Right To Work check on file at the moment.

Practical Measure – Add a Right To Work check on to your induction checklist. In your offer letters, confirm that employment will be subject to them providing valid documentation proving their right to work in the UK.


EU Settlement Scheme and EU Workers

A recent survey of EU workers found that approximately 50% of EU workers still didn’t know about the scheme and therefore hadn’t applied for Settled or Pre-Settled Status through the Settlement Scheme.

It is important to note that you should not be giving immigration advice as this is a regulated activity however, you can share information on the scheme with your employees directing them to where they need to go to register. There are numerous resources such as leaflets and posters which can be found here: Employer Resources Toolkit

The dates that you need to be aware of are:

  • 31st December 2020 – this is the last date that EU workers can arrive in the UK without having to go through the new immigration process, which will require sponsorship and or a visa
  • 30th June 2021 – This is the last date for EU citizens who have lived and worked in the UK prior to 1st January 2021 to apply through the settlement scheme. It has been reported that this is a hard deadline and anyone failing to have obtained settled or pre-settled status by this date will lose their right to live/work in the UK.

Practical Measure – Conduct an audit of your current employee files. Do you have documentation proving their right to work in the UK? If the answer is no, get the required documentation from the employee. If you have EU workers, you can speak to them about whether they have applied through the scheme, they may have confirmation letters/emails proving that they have settled or pre-settled status which they may share with you and you can save on file.


Penalties and Fines

The Government have spoken about their commitment to tackling immigration and the penalties and fines reflect this. If you are found guilty of employing someone who you knew or had ‘reasonable cause to believe’ did not have the right to work in the UK, you could face up to 5 years in prison and face an unlimited fine.

This would include if you had any reason to believe that:

  • They did not have permission to enter or remain in the UK
  • Their leave had expired (important for June 30th 2021)
  • They were not allowed to do certain types of work (will be affected by their VISA)
  • Their papers were incorrect or false

Most employers are unlikely to face the jail time or unlimited fine however you can also be penalised for not doing the checks or if you did not do them properly. In these instances, you may receive a ‘referral notice’ which can be accompanied with a Civil Penalty notice of up to £20,000 for each illegal worker. If you are an employer who will be looking to sponsor employees from the EU to come and work for you through the VISA system, this may also lead to you being blacklisted and they may revoke the status of all the other employees who you are currently sponsoring.


Final Comments

We are already finding that auditors are looking at Right To Work checks and companies who have to tender for work may have to declare that they have checked all employees for their Right To Work. We have even seen certain PQQ’s request Recruitment and Right To Work Policies.

Ultimately all it takes is a quick check before finalising someone’s employment to negate what can be a particularly high risk.

If you have any queries about conducting Right To Work Checks or any other employment issues, please contact the team on 01302 346 825.

By Kris Kerins BSc (Hons) PGC (Tech Mgmt)HR Business Partner

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