Code of Practice on Preventing Illegal Working Overview

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1 The May 2014 Code of practice (which updates the one issued in 2008) has been issued to clarify the factors the Home Office will use to determine the amount of the civil penalty for employing an illegal worker. It includes detail on the following changes to the illegal working scheme: Employers are not automatically required to conduct checks every 12 months for employees with temporary permission to be in the UK following the initial right to work check; Reduction to the range of accepted documents for checking the right to work; For international students who have restricted right to work, employers will be required to obtain and retain a copy of evidence from the student s education sponsor, setting out their term and vacation times covering the duration of their period of study in the UK for which they will be employed; An extension of the grace period to 60 days for conducting right to work checks for employees acquired as a result of the Transfer of Undertakings (Protection of Employment) Regulations; A revised method for calculating civil penalty levels; Inclusion of the payment by instalment option; and The reduction of the civil penalty amount for early payment (fast payment option). This Code applies: (i) (ii) when calculating the penalty amount; any employment which commenced on or after 29 February 2008 where the breach occurred on or after 16 May 2014; or when determining liability; where an initial check on a potential employee, or a repeat check on an existing employee, is required on or after 16 May Where the employment commenced on or after 29 February 2008 and the breach occurred before 16 May 2014, the Code published in February 2008 applies. This Code applies to employers who employ staff under a contract of employment, service or apprenticeship. It does not apply to those who undertake work with a genuine self-employed status. This Code has been issued alongside guidance for employers setting out how to conduct right work checks, how the Home Office administer the scheme and a code of practice on avoiding unlawful discrimination.

2 The Code of practice civil penalty scheme 2014 covers: An overview of how the civil penalty will be administered o Liability for a civil penalty. o Fast payment option. o Payment by instalments. o Enforcement and other consequences of a civil penalty. Determining liability and calculating the penalty amount o Consideration Framework o Civil penalty calculator o Do you have a statutory excuse? o Do you have mitigating evidence? o Do you have effective document checking practices in place? How to conduct a right to work check o 3 step check o Lists of acceptable documents for right work checks o Follow up right to work checks Code of practice for employers avoiding unlawful discrimination while preventing illegal working UKVI have introduced a Code of practice for employers avoiding unlawful discrimination while preventing illegal working. The Code of practice has been issued to help employers avoid claims of discrimination (direct or indirect) by applicants or employees. This Code of practice applies where employment commenced on or after 16 May It also applies where a repeat check on an existing worker is required to be carried out on or after 16 May 2014 to retain a statutory excuse. The Code of practice for employers avoiding unlawful discrimination while preventing illegal working covers: Employers duty under the law o Direct discrimination o Indirect discrimination o Unlawful race discrimination o Other discrimination grounds o Action against an employer How to avoid race discrimination o Fair recruitment process

3 An Employers Guide to Right to Work Checks On 16 May 2014 changes came into force to strengthen and simplify the civil penalty scheme for employers, and this includes some changes to the document checks employers are required to undertake. A summary of the changes is as follows: Reduced the list of acceptable documents for right to work checks UKVI have removed travel documents, work permits and general Home Office letters from the lists. All documents which contain an expiry date must now be current, except those showing that the holder is a British citizen, a citizen of the UK and Colonies having the right of abode, a national of an European Economic Area (EEA) country or Switzerland or their family members with permanent residence. The frequency of follow-up checks for people with time-limited right to work is no longer every 12 months instead, where a person presents a document which contains an expiry date, the follow-up check is required when their permission to be in the UK and do the work in question expires. When a Certificate of Application or an Application Registration Card is presented as evidence as right to work or the employee has no acceptable documents because they have an outstanding application to the Home Office or appeal against an immigration decision, the follow- up verification check is required 6 months after the date of the initial check. The acceptable documents for right to work checks set out in List B provide a statutory excuse for a limited period of time. This list has been separated into Group 1 and Group 2 to clearly distinguish the frequency of repeat checks required depending on the document presented. There is an extension of the statutory excuse for a maximum of 28 days beyond the expiry date of permission to work where the employer is reasonably satisfied that an employee has submitted an application to the Home Office or has an appeal pending against a decision on an application. During this period, an employer must contact our Employer Checking Service to verify that the employee continues to have the right to do the work in question whilst their application or appeal is being determined. There is an extension of the grace period to 60 days (from 28) for conducting right to work checks on people acquired as a result of a Transfer of Undertakings (Protection of Employment) (TUPE) transfer. A record of the date on which a check was made must now be retained and we no longer require the front page of the passport to be copied in order to establish and retain a statutory excuse.

4 International students who have a limited right to work are required to provide an employer with evidence of their academic term and vacation times for the duration of their studies in the UK while they work, in order for an employer to establish and retain a statutory excuse. A partial right to work check is no longer a mitigating factor in the calculation of a civil penalty. This guide applies where an initial check on a potential employee or a repeat check on an existing employee is required on or after 16 May 2014, when considering if document checks have been conducted as required to establish or retain a statutory excuse. An Employers Guide to Right to Work Checks covers: What is a right to work check? Why do you need to do checks? Who do you conduct checks on? How do you conduct checks? o The 3-Step Process o Acceptable documents o Checking the validity of documents o Retaining evidence o Additional evidence from students o Home Office Verification Checks When do you conduct checks o Follow-up checks o Transfer of undertakings Additional documents, guides and checklists have been published by the Home Office at

5 Change / Recommendation Impact Action Code of practice civil penalty scheme Payment options and calculations for paying a civil penalty No immediate impact None at this time Code of practice for employers avoiding unlawful discrimination while preventing illegal working Reminder in the recruitment process that shortlisted Low applicants will be required to produce original, acceptable documents An Employers Guide to Right to Work Checks Reduced the list of acceptable documents for right to work checks Medium Review immigration guidance and working in the application process Update List A and List. Circulate to colleagues. Update Eligibility Checking Document. Update website information. Update Eligibility training documentation. Inform HR Operational Services. Removal of 12 monthly right to work checks Medium Ensure all repeat checks are carried out for current staff, up to... (this point is being clarified on the Immigration mailing list) Introduce 12 monthly change in circumstances check for all staff with restricted right to work. Follow up checks Medium Produce a follow up checks procedure and circulate. Employer Checking Service Positive and Negative Verification checks Medium Produce a Verification Checks procedure for migrants who have submitted an extension or appeal application. Produce a spreadsheet tracking and monitoring dates to ensure Verification checks are made when required

6 Change / Recommendation Impact Action An Employers Guide to Right to Work Checks Additional evidence for students with limited right work Medium Speak with Rebecca Blight. Current documentation only is acceptable for non UK and non EEA nationals Medium Understand the process other HEIs are adopting. Speak to the Tier 4 working group Update Eligibility guidance document. Introduction to document fraud online training Low Undertake training. Update colleagues and Operational Services. Contact current colleagues with restricted right to work to advise out of date passports are not acceptable. Promote to colleagues. Summary of employment permitted by International Students Medium Produce guidance for employing overseas students.