Right to work checks – how to avoid a £20,000 fine from the Home Office

One of the worst letters which HR can receive has to be a letter from the Home Office headed “Information Request: Illegal Working Civil Penalty” and demanding information about a current or former employee whom the Home Office suspects has been working illegally in the UK. If you receive this letter it will likely say that your company may be liable to pay a civil penalty and ask you to provide evidence of having checked the right to work of one or more of your staff.

If you don’t provide the evidence required within the timeframe, or the Home Office is not convinced that you have a statutory excuse against a civil penalty, then they could fine your company up to £20,000 per illegal worker. Worse, if they suspect that you have knowingly employed someone illegally you could face an unlimited fine and/or a prison sentence of up to 2 years. The scope of this penalty will be widened even further once the Immigration Act 2016 is brought into force, as any employer who knows or has reasonable cause to believe that someone is working illegally could face up to 5 years in prison.  In addition, being found to employ illegal workers could put any sponsor licence that the company has at risk.

So how do you avoid these penalties? To maintain a statutory excuse against such a penalty you need to check the right to work of each worker before they start working for you. This means seeing the worker’s original document evidencing their right to work – not a scan or photocopy. This might be their passport or ID card and, if they are from outside of the European Economic Area, a visa in their passport or a biometric residence permit – a list of the documents that evidence right to work and how to check these can be found on Buddy here. You need to check that the worker’s appearance and name match the details in the right to work document – does the date of birth sound about right? Have they evidenced any change of name? Does the document look valid or is it clearly a forgery and if they have a work visa is this in date or has it expired? If you’re not convinced that the document is genuine or that it gives the employee the right to work then investigate further and don’t employ them until you are satisfied that they can work for you legally.

Crucially, you also need to keep evidence of the check that you have carried out and the date on which you conducted your check. This means keeping a physical or electronic record of every document you have checked for the duration of the person’s employment and 2 years after they leave. To show the date you can either sign and date the photocopy before you file or scan this or hold a separate manual or digital record of the date the check was conducted. For anyone whose permission to work in the UK will expire, you also need to make sure that you repeat your check in the same way when their visa expires to maintain your statutory excuse. The Home Office’s comprehensive guidance sets all of this out.

If you receive an Information Request from the Home Office then make sure you respond within the timeframe and provide full details and evidence of taking these steps, including evidence of when you did the check. Even if the document that you checked turns out to be a convincing forgery, if the Home Office considers that it was reasonable for you to think that the worker had the right to work then you should avoid a hefty penalty.

Employmentbuddy.com