Right to work checks cause a lot of confusion and anxiety for both employers and employees.
Busting some myths on right to work checks
Right to work checks form a plank of the ‘hostile environment’. They can put both employers and employees in a difficult position. We often receive queries from employers who are not sure if they can continue to employ someone, and also from individual clients who are being threatened with dismissal prematurely.
There is a lot of misunderstanding about the law in this area and this post is designed to try and help all sides understand the position. It is not legal advice. Immigration law is complicated and anyone who is not sure should seek advice based on the facts of their particular scenario.
- Employers are not legally obliged to do right to work checks. This is a common misconception. Employers who are found to be employing a person who does not have the right to work can get a civil penalty. A fully compliant right to work check acts as a ‘statutory excuse’ to the civil penalty.
However, employers cannot be punished for failing to do right to work checks if all of their employees do, in fact, have the right to work.
The exception to this is for employers with a sponsor licence, who could face enforcement action by the sponsor licence compliance team.
This does not mean that employers shouldn’t bother with right to work checks- they should. Civil penalties can run to £20,000, which is a lot of money. However, employers who dismiss too soon may be subject to unfair dismissal and race discrimination claims. It is important to take a balanced approach.
- Employers do not have to dismiss an employee if they have not got a new grant of leave by the time that the old one expires. If an employee’s leave is due to expire, it is good practice to get in touch with them to make sure that they are making a fresh application for leave.
However, all that the employee needs to do it to submit a new, valid application to the Home Office by the date that their old visa expires. Their right to work is then automatically extended as long as that application is under consideration by the Home Office. This is provided for in s3C of the Immigration Act 1974 and is therefore referred to as ‘s3C leave’ by immigration lawyers. S3C leave will continue if the application is refused by the Home Office but the employee puts in an appeal or administrative review.
The Home Office can take many months to consider an application, and applicants often can’t submit their applications until 28 days before their current visa is due to expire at the earliest. This means that it is often impossible for them to have their new visa in place by the time that the old one runs out.
- How can an employer know for certain that the employee has submitted a valid application in time? Employers do not need to have a new right to work document available on the day that the employee’s leave expires. Provided an employer is ‘reasonably satisfied’ that a valid application has been submitted, they have a 28 day grace period during which time they can continue to employ the employee without risk of a civil penalty. This is provided for in the Home Office document ‘An Employer’s Guide to Right to Work Checks’.
The vast majority of visa applications are now submitted online and confirmation is received electronically. An employer could ask for some evidence that the new application has been successfully submitted online.
- If the Home Office have not reached a decision by the end of the grace period, then the employer can use the online employer checking service. Employers should get the employee’s permission before doing this. If the employee still has s3C leave, then the Home Office should send a ‘positive verification notice’ to the employer, confirming that the employee has the right to work. This document is included on List B on the ‘right to work’ checklist and will give the employer a statutory excuse for 6 months.
The employer checking service can take a few days, so employers should consider doing this a week or so before the end of the grace period.
This does not mean that employers should never dismiss an employee whose visa has expired. If an employee has not submitted a valid, in time application, then their right to work will end. If an application is refused and the employee does not submit and appeal or an administrative review, then their leave will also end. Employers need to consider each case on its facts and make an informed judgment, which can be difficult without becoming an expert in immigration law.
Employers should be aware that it is a criminal offence to employer a person if the employer knows or has reasonable cause to believe that they do not have the right to work. In that circumstance, the 28 day grace period or a positive verification notice would not save you.
Employees should bear in mind that their employer may be required to make a difficult judgment and co-operate with updates. However, if they feel that their employer is acting unfairly, consider taking legal advice before your employer decides to dismiss.
If you are an employer and you are not certain about an employee’s visa, or if you are an employee being threatened with dismissal, please call 0808 168 5550 for legal expert advice.
Article written by Lydia Watkinson.