IMPACT – MEDIUM

What is the change? The Home Office has published new right-to-work guidance that clarifies employers’ obligations in verifying employees’ work authorization.

What does the change mean? The guidance clarifies steps for employers in checking right-to work documentation for all U.K. employees and gives employers who follow the guidelines a “statutory defense” against any potential illegal working claim. The guidance has been updated to reflect the latest changes to the U.K.’s Immigration Rules, and now includes details on how to treat EEA nationals who lack work documentation but who have been long-term residents since before 1988 (“Windrush” generation workers), Croatian nationals, and workers transferring their employment under Transfer of Undertakings (Protection of Employment), or TUPE, as a result of a merger or acquisition.

  • Implementation time frame: Immediate. The requirement for work permits for Croatian nationals will be removed July 1, when they will have full free movement rights in the European Union and can work on the basis of their Croatian passport alone.
  • Who is affected: All U.K. employees, but with specific changes for “Windrush” residents, Croatian nationals and TUPE transferees.
  • Business impact: Employers may be subject to heavy criminal and civil penalties if they are found to have employed a worker illegally. Following the correct right-to-work check procedure can provide a statutory defense if employee documents prove to be false.
  • Next steps: Companies are encouraged to review their right-to-work check procedures and update them according to the new guidelines.

Key changes:

  • Some non-EEA nationals who have been long-term residents of the U.K. since before 1988 may not be able to evidence right-to-work documentation if they are members of the Windrush generation. The Home Office recently set up a task force to allow these individuals to apply for documentation, however, and employers of non-EEA nationals who may be in this category should contact the Employer Checking Service, which will be able to verify their status with the task force. If verified, the employer will receive a Positive Verification Notice that gives the employer a six-month statutory period to accomplish issuance of appropriate documentation. At the end of the six months, the employer must re-check the individual’s right to work, by which time the appropriate documentation should have been issued.
  • Effective July 1, Croatian nationals may work without restriction in the U.K. They will have full rights of free movement in line with other EU nationals and will no longer need to obtain work permission from the Home Office. Therefore, employers confirming Croatian nationals’ right to work may accept an official document demonstrating their nationality, such as passport or national ID card.
  • Employers who acquire employees based on a merger or acquisition covered by TUPE regulations have a 60-day grace period from the date of transfer of the business to conduct fresh right-to-work checks.

Background: In 2016, the U.K. made it a criminal offense to work illegally or to employ an undocumented worker if the employer knows or has “reasonable cause to believe” it is doing so. Authorities can seize wages and assets and employers may face up to five years of imprisonment and an unlimited fine. As a best practice, employers should follow the specified three-step regime to ensure acceptable right-to-work check documents are retained prior to employment, to follow-up these right-to-work checks and to retain records as specified in the guidance.

BAL Analysis: The amendments to the guidance are not extensive and the overall immigration compliance and right-to-work framework remain unchanged. However, all U.K. employers should ensure up-to-date right-to-work guidance is available to their HR professionals and take this as an opportunity to review HR procedures to ensure that they are in full compliance.

This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.

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