Right to work checks and employing foreign nationals

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Quick Facts

16th February 2024

  • From 1 January 2021, new immigration law came into effect as a result of the end of freedom of movement between the UK and EU. For more information on Brexit, see Brexit implications.

  • To gain a statutory excuse against a civil penalty fine of up to £20,000 per worker, organisations are advised to carry out right to work checks in accordance with the Home Office’s three-step checking process. Organisations are encouraged to make offers of employment conditional upon the provision of satisfactory right to work documentation to ensure they secure the statutory excuse.

  • Since 29 January 2019, organisations can rely on the Home Office’s online right to work checking service to be granted the statutory excuse. Where the service can be used to check an individual’s immigration status, no further documentary checks are required.

  • Since 1 January 2021, sponsorship licenses have been required to employ all overseas workers through the new “skilled worker” route, including from inside the EEA and Switzerland.

Key Updates

Updated: 15 february 2024

Fines for illegal working triple

Effective from 8 February 2024, the maximum civil penalty for non-compliance with the Right to Work Scheme has increased to £45,000 per illegal worker for a first breach and £60,000 per illegal worker for repeat breaches.

Summary

Organisations are placed under a legal duty to prevent illegal working and can be subjected to penalties where they fail to do so. A criminal offence will be committed where an organisation employs an individual and they have “reasonable cause to believe” they do not have the right to work in the UK.

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Right to work checks and employing foreign nationals: Resources

Downloads

Contract clause to prevent illegal working

From 29 January 2019, organisations can carry out online right to work checks without requiring documentary evidence, where the individual's immigration status allows them to do so. This clause explains the documentary evidence or information required by employers of foreign nationals in order for them to work in the UK.

Contract clause for repayment of immigration fees

This is an additional clause that can be added to the employment contract for international recruits in health and social care where the organisation wants to recover immigration fees. This clause has been drafted in line with the Code of Practice for the International Recruitment of Health and Social Care Personnel in England. More information on this is available here.

Proof of entitlement to work in UK

This document outlines the steps needed for manual, online and digital checks of right to work in the UK.

Letter asking a candidate or employee for evidence of right to work in the UK (document check)

Use this letter to ask candidates or employees to provide evidence of their right to work in the UK. The letter includes a list of acceptable documentation showing an ongoing right to work and another list of acceptable documentation showing a right to work in the UK for up to 12 months, and includes the option to conduct a manual or digital check.

Letter confirming dismissal of an employee who has not provided documentary evidence or information to check right to work in the UK

From 29 January 2019, organisations can carry out online right to work checks without requiring documentary evidence, where the individual's immigration status allows them to do so.

Having held a meeting to discuss an employee's legal entitlement to work in the UK and their failure to provide acceptable documentation to prove their continued right to work in the UK or required information to under an online check to confirm their right to work, use this letter to confirm their dismissal.

Letter confirming the start date of employment for a foreign national

This letter is to make an offer of work to a foreign national, outlining the position, salary and start date, and the proof they must provide of eligibility to work in the UK. From 29 January 2019, organisations can carry out online right to work checks without requiring documentary evidence, where the individual's immigration status allows them to do so.

Letter withdrawing an employment offer where a candidate has not confirmed right to work in the UK

From 29 January 2019, organisations can carry out online right to work checks without requiring documentary evidence, where the individual's immigration status allows them to do so.

Use this letter to confirm that the offer of employment will be withdrawn as a consequence of the candidate being unable to provide acceptable evidence of the right to work in the UK or not receiving an online right to work check confirming their right to work in the UK.

Letter to EU workers outlining the EU Settlement Scheme (Archived)

This letter can be provided to EU workers to inform them of the EU Settlement Scheme. It reminds them that whilst the company does not wish to lose anyone, it will need to assess their immigration status if they do not apply by 30 June 2021.

Note: this letter should only be distributed to EU workers who are living and working in the UK prior to 31 December 2020. Any who come into the UK after this date will need to do so via the new immigration system.

It is no longer possible to apply under the settlement scheme and therefore this letter is no longer applicable.

Letter asking a candidate or employee for information to check right to work in the UK (online check)

From 29 January 2019, organisations can carry out online right to work checks without requiring documentary evidence, where the individual's immigration status allows them to do so.

The letter includes a list of required information needed to undertake an online right to work check to confirm the individual has the right to work in the UK.

Letter in response to a data subject erasure request

This letter should be sent to employees who have requested their data be erased under data protection law, with options for approving and rejecting this request.

Policy on employing foreign nationals

This policy explains the rights of different foreign nationals to work in the UK and the legal obligations of an employer wishing to employ them.

Note: this policy was updated in January 2021 to reflect new immigration laws as a result of Brexit.

Checklist for preparing for Brexit

This checklist outlines the key steps that organisations should take to prepare for Brexit. It includes details on the EU Settlement Scheme, alongside what organsiations should do when taking on foreign nationals from 1 January 2021.

Right to Work Checks training session

This training presentation is designed to aid your internal training and the content is intended to be amended to suit your organisation.

All slides and trainer notes are based on best practice guidance and are fully amendable to include internal practices, organisation policies and practical scenarios.

The session covers conducting right to work checks and sponsorship.

Right to Work Checks — training supporting materials

This document contains references to supporting materials available on HR-inform that can be used to amend, and enhance, the internal training session to suit the needs of your organisation.

Reviewed 19 October 2023

Case Reports

R (Pathan) v Secretary of State for Home Department - Immigration sponsorship

The Supreme Court has considered whether the Home Office’s treatment of a skilled worker under the current tier 2 immigration system was unfair.

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Badara v Pulse Healthcare Limited

The Employment Appeal Tribunal (EAT) has held that an organisation was wrong to completely depend on a negative right to work check when deciding to withhold work, and pay, from the claimant.

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Afzal v East London Pizza Ltd t/a Dominos: importance of appeal

The EAT has ruled that an employer’s belief that an appeal would make no difference in a right to work dismissal was incorrect. The appeal could have provided opportunity for key evidence against the dismissal, not readily available at the time, to be submitted.

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Baker v Abellio London Ltd – Dismissal: failure to produce right to work evidence

Did a failure to produce right to work documents justify a statutory illegality dismissal?

Learn More

Organisations are placed under a legal duty to prevent illegal working and can be subjected to penalties where they fail to do so. A criminal offence will be committed where an organisation employs an individual and they have “reasonable cause to believe” they do not have the right to work in the UK.

Quick Facts

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