Right to work checks – top tips to avoid a £60k fine

This article was first published by People Management

People Management recently published an article by Nexa’s Emma Bagshaw, a consultant solicitor specialising in employment law, on right to work checks – top tips to avoid a £60k fine.

As the Home Office announces penalties for failing to conduct the appropriate checks are set to triple from early 2024, Emma Bagshaw explains how an organisation can protect itself.

It’s 2024 and a letter arrives in the post from the Home Office asking whether your organisation completed right to work checks for an ex-colleague identified as working illegally. At best, your organisation finds all the necessary paperwork to evidence that a satisfactory check was completed and avoids a fine. At worst, it doesn’t find the information and is issued with a £60,000 fine. With the threat of fines tripling next year, organisations need to prioritise ensuring that their internal right to work checks procedures are watertight.

What will be changing?

The home secretary announced in August that civil penalties will be tripled from the start of 2024. Why? The Home Office wants to deter illegal migration, exploitation of vulnerable people and modern slavery.

For a first offence, the penalty will be raised from £15,000 to £45,000. For any subsequent breach, the maximum fine will increase from £20,000 to £60,000. The actual penalty amount will depend on the employer’s history of compliance and their co-operation with the Home Office’s investigations.

Since the start of 2018, around 5,000 civil penalties have been issued to employers with a total value of £88.4m. Many instances of illegal working were not identified in the past, but the Home Office has stepped up its identification activities.

Where illegal working is identified by the Home Office, an employer can only avoid a fine by establishing a statutory excuse through conducting a manual right to work check, using identity document validation technology (where permitted) or completing a Home Office online right to work check. The Home Office has confirmed that these methods will not change.

Who’s responsible?

Generally, the checks are the responsibility of the recruitment department and devolved to managers to complete. This typically increases the risk of a fine because managers are not familiar with this area of regulation. Although the Home Office presents right to work checks as being simple, there are a lot of nuances that can be easily missed.

What mistakes are employers making?

Here are the top five mistakes that businesses make when completing the checks:

Failing to update HR processes. The Home Office does not publish an announcement when it changes its guidance documents for employers. To ensure processes are current, appoint someone to be responsible for keeping up to date with changes and ensure your processes include the latest information.
Accepting biometric residence permits as valid proof of right to work. Managers have been manually checking physical visas for so many years that it has become second nature to accept these documents. After all, is this not adequate proof? Make sure that managers are fully aware that biometric residence permits, biometric residence cards and frontier worker permits cannot be accepted. An online check using the Home Office online right to work checking service must be used instead.
Failing to record the date that the check took place. This is simple, but if your organisation cannot prove to the Home Office that checks were made before employment commenced, you will be fined.
Failing to hold term dates for student and tier 4 visa holders. Student and tier 4 visa holders are typically restricted to working 20 hours in term time. Organisations forget that they must hold a copy of term dates for the entirety of the student’s course. To prevent identity fraud, employers should confirm that the student is studying where indicated. Students must also not be employed on a full-time permanent contract unless specific exemptions apply.
Failing to understand when work is permitted after graduation. Student visa holders can work full time after their course has completed until the expiry of their visa, but completion must be evidenced. Some businesses are caught out when they find out that the student is resitting exams and is ‘studying’ despite working full time.

The minister for immigration, Robert Jenrick, has said that “there is no excuse for not conducting the appropriate checks”. Make sure your organisation reduces the risk of falling foul of the law. Remember, fines are only part of the overall package of disincentives to employ illegal workers, including business closures, licensing implications and criminal convictions.