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Published 21 August 2014
In May 2014, we reported that the Government introduced new regulations that update the list of acceptable documents employers need to check to obtain a statutory excuse against payment of a fine for employing an illegal worker and that increase the level of that fine.
The Home Office has updated the employer's guide on right to work checks and clarified the position in relation to accepting expired passports. In summary, Non-EEA passports must be current at the time of the right to work check to obtain the statutory excuse against payment of a fine if the employee is later found to be illegally working.
The updated employer's guide on right to work checks clarifies the changes made to acceptable documents in List A & B in May 2014. The clarifications are:
1. Non-EEA passports containing visa endorsements showing the employee has any of the following work permissions must be current at the point of the right to work check (a List A document):
2. Non-EEA passport holders that are family members of EEA or Swiss nationals, and in possession of a current Residence Card visa endorsement, must present this in a current passport (a List B document).
Prior to 16 May 2014 (the old regime), expired non-EEA passports were acceptable as long the visa endorsement was current and the employer was satisfied about the identity of the person. Since 16 May 2014 (the new regime), employers, current employees and prospective employees must ensure they take the opportunity to transfer the visa endorsement to a current passport in good time before a right to work check is due. In practice, this often means current employees or prospective employees must apply to the Home Office for a Biometric Residence Permit.
In the absence of a current passport or document (containing current work permission), employers risk losing the statutory excuse against payment of a fine (for follow-up checks), or not being able to establish the statutory excuse (for initial checks) for lack of an acceptable List A or B document.
Employers are most likely to come across current visa endorsements (for example, under Tier 2 & 4 and indefinite leave to remain), in passports that have since expired where:
In both instances and where possible, the employee must be given an opportunity to obtain a current document by making the requisite application to the Home Office.
We recommend employers carry out an urgent review of passport expiry dates for existing employees with time-limited leave, and for whom an annual check is due to provide you with a statutory excuse under the new regime. This is because the postal Home Office application process to obtain a current document can take up to eight weeks at present, during which time the employer will not have the statutory excuse in the event of a compliance visit and the employee is found to be illegally working.
The Home Office has clarified that students who are allowed to work for limited hours must be enrolled on their course of study with their sponsor in order to be able to work. Students who withdraw from their course, or who no longer have a sponsor (or who finish their course early) will not continue to have the right to work. In these circumstances, employers may be liable to prosecution, or an unlimited fine if they knowingly employ a student who no longer has the right to work because that student is no longer studying.
From 28 July 2014, the Government has made changes to the procedures for objecting and appealing civil penalties and enforcing penalty payments. Employers are now required to exercise their right to object against a civil penalty before they appeal to the civil court. In addition, the Government has made it easier to enforce an unpaid civil penalty in the civil courts. The Secretary of State will be able to register the debt rather than issue a substantive claim, meaning enforcement proceedings can be issued immediately.
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