Posted on 21 Sep 2015

Increased importance of immigration "right to work" checks

The Immigration Bill, due in this Autumn, is to introduce a new offence of "illegal working". This new offence will be introduced as an added deterrent to both employers and employees. In the case of employees, it will allow wages to be seized, as proceeds of crime, plus a potential prison sentence of up to 6 months, and an unlimited fine. 

However the Bill will also include tougher sanctions on employers who flout immigration restrictions. The Government has already increased penalties for employing illegal workers, to a maximum penalty of £20K per worker. Additional sanctions are likely to include powers to close down businesses, revoke licences, and prosecutions for persistent offenders. 

The direction of travel is clear, and points up the importance of employers undertaking thorough "right to work" checks on all job applicants. ACAS provides helpful guidance on how to carry out the checks, including which documents to review. They also flag the importance of conducting such checks on all new staff, including British nationals, for fear of a discrimination claim if employers implement selective checks eg only where an applicant's ethnicity or race suggests there could be a higher risk.

In addition, guidance issued on the UK Visas and Immigration Agency, states that transferees, following a TUPE transfer, only have a "grace period" of 60 days post-transfer to carry out appropriate "right to work" checks on the staff they have inherited. This is therefore something employers need to add to their action list, following any TUPE transfer, be it a merger, acquisition, or on winning a contract, leading to a service provision change.