Home Office ends requirement for 12 month checks to be carried out by employers

In July 2013, the Home Office launched the illegal working consultation where the Home Office proposals included the removal of the requirement for employers to carry out annual right to work checks on all employees who had limited permission to reside in the UK and instead only requiring them to check at the end of their visa. The Home Office has since published a Code of Practice on preventing illegal working which updates the one issued in February 2008.

It includes details of the following changes to the illegal working scheme:                 

• In respect of employees with temporary permission to be in the UK and do the work in question, employers are not automatically required to conduct checks every 12 months following the initial right to work check to retain their statutory excuse. A follow-up check will instead be required as specified in this Code, see below*. Generally, this will be when the employee’s permission to be in the United Kingdom and do the work in question expires, as evidenced by the document, or combination of documents, produced for the right to work check
• Reduce the range of documents that are acceptable for checking the right to work
• In respect of students who have a restricted right to work, employers will be required to obtain and retain a copy of evidence from a 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 follow up check will not be necessary if the employee can produce documents found in List A on page 14 of the attached document click here for a link and the statutory excuse will be for the whole duration of the employee’s employment. However, if documents are produced from List B follow up checks will be required where a visa expires. An employer has 28 days from the visa expiry date to contact the Employer Checking Service to receive a Positive Verification Notice (PVN) confirming the employee continues to have the right to undertake the work in question, where there is an outstanding extension or appeal application. The statutory excuse will be preserved for a further six months during the validity of the PVN after which time a further check will need to be carried out. If a Negative Verification Notice is received the statutory excuse will be terminated as the employee will no longer have permission to work for the employer.

The new guidelines will be effective from 16 May 2014 which means that if right to work checks are carried out before this date, the Code published in February 2008 will still apply.