Right to Work Procedures 1. Introduction The law on preventing illegal working is set out in the Immigration, Asylum and Nationality Act 2006. This law means that employing someone who is not allowed to work in the UK is illegal. As an employer, the University has a duty to carry out document checks on all individuals to make sure they have the right to work in the UK before they are employed. This ensures the University only employs people who are legally allowed to work. Breaches of the legislation occur where an employer employs an illegal worker and knows or has reasonable cause to believe the person has no right to do the work in question, or if an employer fails to make adequate checks and/or fails to keep correct documentation for the specified period. Sanctions include large (unlimited) financial fines as well as imprisonment for up to five years. Where a worker is not eligible or no longer allowed to work in the UK, the University is committing an offence and is liable for a civil penalty or may even be prosecuted for non-compliance. The University may also lose the licence to sponsor migrants. It is therefore extremely important for the University to remain compliant and Units must adhere strictly to the University procedures and UKVI guidance. Note on giving immigration advice to individuals: Immigration advice or services in the UK can only be provided by people whose organisations are regulated by the Office of Immigration Services Commissioner (OISC) or by members of certain professions, such as The Law Society of England and Wales. Job applicants and University staff who have individual queries relating to their immigration status or who require help with their immigration applications should be referred either to the UKVI website (gov.uk-visas-and-immigration) or the OISC website (gov.uk/oisc). The UKVI website provides general immigration information and the OISC website keeps a list of registered and approved immigration advisers who can be contacted by an individual for more detailed advice. 2. Determining whether a Right to Work check is required Units must start to establish whether or not a Right to Work (RTW) check is required early in the engagement process, i.e. when defining the work and deciding which type of contractual arrangement is appropriate. The following diagram summarises the process for determining whether a RTW check is required: March 2018 Page 1 of 8
What type of contract are you raising? AL/Internal staff Sole trader or individual consultant (e.g. Day Contractor paying tax/ni) Self-employed contractor (not paying tax/ni) Agency worker Limited Company or Personal Service Company (PSC) RTW check required Check RTW system - does valid RTW check already exist? RTW check not required providing Employment Status Indicator (ESS) tool confirms self - employed status RTW check not required Are there any restrictions? Request RTW documents at interview stage. If interviews are remote or not applicable documents must be checked and verified before any work is undertaken Further checking of RTW for this role is required No further RTW check required Page 2 of 8
A RTW check is required if the worker is a member of internal or Associate Lecturer staff or a consultant /contractor who is not self-employed (as confirmed by the HMRC online Employment Status Service (ESS) tool). In these instances, the documents that show they are eligible to work in the UK must be asked for, verified, copied and retained following the guidance in these procedures before they are allowed to start work. The University is not required to carry out a RTW check if the worker is engaged through an agency (as responsibility lies with the agency concerned), is engaged through procurement as a limited company or Personal Service Company (PSC), or if the person is a sole trader or self-employed contractor with self-employed status as confirmed by the ESS tool. Please refer to the Consultants section of the HR Intranet A-Z for further information on engaging consultants/contractors including guidance on how to check the employment status of a worker using the ESS tool. Part of the checking process involves obtaining original documents from a prescribed list of acceptable documents (known as List A and List B ). Where List A documents have been provided the University has a continuous statutory excuse which is valid for the whole duration of the person s employment as it means there are no restrictions on their permission to be in the UK, therefore individuals who are currently working for the University or who have worked for the University in another capacity in the last six years may already have a valid check in place and if so do not need a further check on re-engagement. Even where there has been a break in service or multiple breaks in service due to one contract ending and another being issued at a later date, workers who have supplied List A documents will not need a further RTW check at reengagement as long as there is a record of the original check and a verified copy of the List A document has been retained. If the break in service/between contracts is more than six years then a new RTW check will be required as the person s file would have been destroyed to comply with the University s Document Retention Schedule and UK Visa and Immigration (UKVI) rules. Units should check the Right to Work system (RTW system) to determine whether a previous check was recorded and remains valid for the work in question. Please refer to the RTW System User Guides for more detail on how to do this. 3. When and how to check right to work Appendix 1 shows a diagram of the RTW checking process. It is intended as a quick reference guide to be read in conjunction with the information below. A podcast is available here which must be viewed by all University staff responsible for conducting RTW checks. In all instances the right to work check must be carried out by a member of University staff who has received appropriate training or instruction. When to check right to work It is a UKVI requirement that eligibility to work is checked before the University employs a person to ensure they are legally allowed to do the work in question. In order to comply with this requirement, standard University policy is that Units must check and make endorsed copies of appropriate documentation and complete a Right to Work Checklist for each candidate at interview and in the presence of the interviewee (unless a valid check is already in place see above). In exceptional circumstances where it is necessary for the administrative aspects of a Unit s recruitment process to take place in a separate location to the interviews, it may not be practical for the check to be undertaken at the interview itself. This is acceptable as long as the requirements outlined in these procedures are fully adhered to. When candidates are invited to interview they should be advised to bring the relevant documentation to their interview (the standard invite to interview letter available within PIMS contains appropriate wording). Page 3 of 8
Where the selection process does not involve an interview (e.g. named candidates) or if the interview is held remotely and the individual does not attend in person, arrangements should be made to check eligibility prior to the individual s first day of employment. For legal reasons it is not possible to formally confirm the offer of employment until the University has seen and verified the original documents from List A or List B in the Right to Work Checklist. Where possible the person to be engaged should attend the nearest OU location with the appropriate documents so that a RTW check can be undertaken. However, UKVI guidelines do allow for the individual to be seen via a live video link (such as Skype) so that the employer can undertake the RTW check and to prove the individual is the person who is the subject of the submitted documents. In these situations, the person performing the check must have the original documents in their physical possession in order to perform the check while the individual appears live on their screen. Candidates will therefore need to send their documents to the appropriate person for the check to be undertaken. Where the Unit recognises the difficulty of the worker to attend in person, reimbursement of reasonable postage costs may be considered on a case by case basis and paid for from the Unit s budget. Units must ensure eligibility documents are stored securely whilst they are held by the University and that they are returned to the individual as soon as possible. It is recommended that documents are returned using the most appropriate Post Office service for the value of the item(s) to ensure delivery of the package can be tracked and compensation claimed should the item go missing. If none of the above options are possible, strictly as a last resort and in truly exceptional circumstances eligibility may be checked on the individual s first day of work as long as no work is undertaken until the check has been completed and the appropriate documents verified. In these instances the Unit must request a photocopy or scanned copy of any relevant documentation prior to the start date as an initial check of their right to work. However, it will still be necessary to check the original documentation on the day, including where a University worker is engaged for 2 days or less (e.g. external examiners and panel members for validation events). In all instances provision of appropriate original documentation confirming eligibility to work in the UK is a legal requirement - without this the individual must not be allowed to undertake the work or receive payment. How to check right to work A Right to Work Checklist must be completed when the RTW check is undertaken. There are three basic steps to conducting a RTW check: Step 1:Obtain original versions of one or more acceptable documents as appropriate, depending on which of the following groups they fall in to and whether there are any restrictions on their employment. The groups of people who can be employed without restriction are: British citizens Commonwealth citizens and citizens of the UK and Colonies with the right of abode in the UK Nationals from the Common Travel Area (Ireland, Isle of Man, Channel Islands) Nationals from European Economic Area (EEA 1 ) countries and Switzerland Non EEA family members of nationals from EEA countries and Switzerland, providing the EEA/Swiss national is lawfully residing in the UK. Units should not employ any individual purely on the basis that they claim to be a national of one of these countries nor make assumptions about a person s right to work in the UK on the basis of 1 EEA countries are: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, UK Page 4 of 8
their colour, nationality, ethnic origin, accent or length of time they have been resident in the UK. Checks must always be made to verify such claims. In order to employ a worker from outside the EEA the University will need to sponsor them before they can get permission to enter or remain in the UK. Please refer to the Guidance on sponsoring a migrant on the HR Intranet for full details of this process. Students who undertake paid employment with the University are subject to the same immigration checks as all employees of the University. A student who is permitted to work will have a clear endorsement in their passport or BRP stating this as well as the number of hours per week allowed during term time (e.g. 10 hours or 20 hours in a week, considered to be Monday to Sunday). If this information is not set out in these documents, the student does not have the right to work. Students who have the right to work are permitted to work full-time during vacations. The work undertaken must not be a full-time permanent vacancy and they must not be self-employed. If presented with documents indicating the holder is a student with limited right to work in the UK during term time, Units are required to obtain and retain evidence of their academic term and vacation dates. The condition permitting students to work is linked to that person following a particular course of study. If the student ceases studying before completing their course or there is a change in their circumstances (e.g. they change their course, switch sponsor, stop studying or have their permission to study curtailed) this can impact on their right to work. The University will be liable if you knowingly employ a student who no longer has the right to work. Please contact your HR Partner for further advice. Step 2:Check the document s validity in the presence of the holder Where the person responsible for checking the documents is unsure of the validity of a passport they should check it against the appearance shown on the following website: http://www.consilium.europa.eu/prado/en/homeindex.html The person checking documents is not expected to be an expert in identifying forged documents, but the University would be penalized if the forgery was reasonably apparent. Units must contact their HR Partner immediately for advice if they believe that fraudulent documents or documents not belonging to the person have been produced, and so that this can be reported to UKVI. In these instances the Unit must not proceed with engaging the individual until the situation has been satisfactorily resolved. Step 3:Copy - make and retain a clear copy, and record the date the check was made. In order to comply with UKVI requirements all copies of documents retained by the University must be legible and the person must be easily identifiable from any copied photograph. To achieve this, where possible documents should be photocopied in colour to ensure the scanned copy is clear and documents being posted to the University should be sent flat rather than folded as this results in a clearer scanned image. The Right to Work Checklist and copies of appropriate endorsed documents for the person to be engaged should be scanned and uploaded to the RTW system by the Unit (see Right to Work System User Guides for more information on uploading scanned documents). 4. Ongoing obligations Follow up checks (List B documents) Where a person presents acceptable documents from List B this means there are restrictions on their right to work in the UK and the engaging Unit is responsible for carrying out follow-up checks on them. The frequency of these follow-up checks depends on whether the documents are from Group 1 or Group 2. For Group 1 documents, a follow up check is required when permission to work (as set out in the document(s) checked) expires. For Group 2 documents, a follow up check is required when the Positive Verification Notice (PVN) expires. Page 5 of 8
An application or appeal to vary or extend leave must be made by the individual before their permission to be in the UK and do the work in question expires in order to be deemed in time and valid. At the point that permission expires if you are reasonably satisfied (i.e. have obtained proof) that the worker has such an outstanding application or appeal, the time-limited statutory excuse will continue from the expiry date of the worker s permission for a further period of up to 28 days to enable the University to verify through the Employer Checking Service whether the person has permission to continue working. Please contact your HR Partner who will arrange for a check to be made. If UKVI issue a PVN to confirm the employee s continuing right to undertake the work, your statutory excuse will last for a further six months from the date specified in the Notice and the Unit should make a further check upon its expiry. If UKVI issue a Negative Verification Notice (NVN) stating that the person does not have permission to undertake the work in question, your statutory excuse will be terminated and you should no longer employ that person. Your HR Partner will advise you what to do. A biometric residence permit (BRP) is one of the documents accepted as part of the RTW checking process and is collected by the individual after arrival in the UK. Where an individual needs to start work prior to collecting their BRP, a right to work check can be conducted on the basis of the short validity vignette in the passport they used to travel to the UK. If the individual has not collected their BRP before the vignette in the passport expires they will have no evidence of their right to be and work in the UK. The Unit is therefore responsible for ensuring a further follow up right to work check is conducted using the BRP before the vignette expires. The RTW System allows Units to run reports to identify in advance where follow-up checks are required. Retaining and destroying documents Eligibility documents and completed RTW checklists for workers must be uploaded to and stored in the RTW system for the duration of the individual s employment plus six years after their employment terminates to comply with the University s Document Retention Schedule and UKVI rules. Units must ensure electronic records relating to workers are deleted from the RTW system six years after their employment terminates (please refer to the RTW System User Guides for further information on how to do this). Where HR is responsible for raising the contract, Units must upload the successful candidate s documents to the RTW system before sending copies to HR with the offer paperwork. These will be destroyed once HR has checked the quality of the scanned documents. Any further photocopies of documents or electronic versions which have been temporarily saved in order to upload to the system should be destroyed or deleted by the Unit. Where contracts are not raised by HR, Units must have their own processes in place to ensure the quality of scanned documents is adequate and data protection principles are adhered to. For data protection reasons, all eligibility documents copied from unsuccessful candidates should be destroyed as soon as they are no longer required (i.e. as part of the Unit s normal recruitment process along with other recruitment paperwork). Management information and reporting A number of standard reports are available within the RTW system which are designed to help ensure the University meets the obligations set out in these procedures. Certain reports enable Units to manage their data themselves - i.e. by identifying where no RTW data is recorded, those whose limited RTW is due to expire, and anyone who left more than 2 years ago. Any other reports (e.g. sponsored migrants) will be run centrally by HR. 5. Immigration checks for other categories Page 6 of 8
Tier 4 (Students) This category is managed by Research and Academic Strategy. Tier 5 (Government Authorised Exchange) The University holds a sponsor s licence for Tier 5 (Government Authorised Exchange). This category is for people coming to the United Kingdom through approved schemes that aim to share knowledge, experience and best practice, and to experience the social and cultural life of the United Kingdom. Research and Academic Strategy are responsible for this entry route for Sponsored Researchers, however, HR Partners are responsible for advising on the immigration aspects of this category. Tier 5 (Academic Visitors) Visiting Academics can enter the UK via the Home Office visa scheme to carry out their own private research or exchange information on research techniques. Governance is responsible for the Visiting Academic Policy, however, HR Partners are responsible for advising on the immigration aspects of the policy. 6. Useful References Right to Work Checklist Open University Retention Schedule Right to Work System User Guides Engagement of Consultants Policy and Procedure Guidance on sponsoring a migrant Visiting Academics section of Governance Intranet site 7. Appendices Appendix 1: Quick reference guide to the Right to Work checking process Page 7 of 8
Appendix 1 Quick reference guide to the Right to Work checking process Person to be Engaged Confirmed Is the person to be engaged currently engaged with the OU (or has been in last 2 years)? Check RTW System - does a RTW check already exist? Undertake RTW check Does RTW record have a blue or green (unlimited RTW)? RTW record has amber triangle Do existing eligibility documents allow the individual to do the new role? No further RTW check required Refer to HR Partner Is person to be engaged eligible to work in UK and do the work in question? Refer to HR Partner Scan & upload RTW checklist & endorsed docs for person to be engaged to RTW system Is HR responsible for generating the contract? Send copies of the RTW docs for person to be engaged with offer paperwork to HR for verification & destruction. Destroy duplicate versions Destroy duplicate versions of docs for person to be engaged Page 8 of 8