Currently anyone employing a citizen from a European Country is obliged to carry out a right to work check. What employers do not currently have to do is ask when the person came to the United Kingdom. Employers are not allowed before the 1st July to ask if an employee has applied for settled or pre settled status or if they are entitled to apply for settled status.
Immigration Rules
To complicate matters the Government introduced on the 1st January new complex immigration rules which will use a points-based visa system for applicants. The new laws will apply to those who desire to reside and take up employment in the United Kingdom. It will apply to citizens of the European Union States as well as the rest of the world. Persons from the European Union member states who wish to remain must apply before the 30th June for settled or pre settled status.
Employers should be aware European Union citizens were still able to enter the United Kingdom after the 1st January and some may have taken up employment in the United Kingdom without knowledge of the settled or pre settled status scheme of such individuals. This could mean you have employees working on the payroll without the right to work after the 1st July. The Government have created a problem here for employers as they do not require employees taken on between the 1st January and the 30th June to have backdated right to work checks.
Employers can risk enforcement action and a fine to a maximum sum of £20,000 per illegal employee if they fail to undertake the correct right to work enquires. Employers should take a copy of the documents provided and keep them secure. Employers may also face imprisonment for a term of 5 years and face a fine where it is proven the employer is guilty of providing employment to a person who they have reasonable belief had no right to work in the United Kingdom, their leave in the United Kingdom had expired or they have provided false documents.
Home Office
As an employer if you find yourself in this position it is important to obtain legal advice immediately. The employee should be suspended pending further investigation into their right to work. Such employees should be asked to produce their documentation for further perusal and provide updated information from the Home Office about their visa status. Regarding European Union Member state citizens from the 1st July the employer can legally ask them for proof of their application or evidence of settled or pre settlement status.
Employers should be mindful not to treat European Union Member state citizens less favourably as this could result in a discrimination claim. For employee who cannot provide evidence of the right to work employers will have to consider termination using a fair procedure to avoid potential wrongful and unfair dismissal claims.
Employers with a sponsorship licence who discover an employee does not have the right to work will also have to report the matter to the Home Office. The home Office will investigate the report and the employers sponsor licence may be reviewed and this can result in the loss of the sponsor licence or having the licence demoted. Hence for those employers with a sponsor licence it is vitally important to have a high standard HR practice. Seek advice immediately when you become aware of a difficult situation involving an employee whose right to work is questionable.
If you have any concerns about these complex matters, please contact the Quest Advice service for further help and guidance on 01455 852028.
