Immigration update: February 2022

Key questions:

Here are a few of the questions that our clients have been asking us this month:

Right to work checks:

6 months following the closure of the EU Settlement Scheme, issues persist with right to work checks. The following issues are just some of the issues that have been coming up this month:

1. Staff at companies requesting evidence of right to work from contracted workers who are employed by another company.

It is a common fear to have a person who is an illegal worker at your place of work, whether they be working on a contract or visiting the premises. However, the burden for being assured of an individual’s right to work in the UK prior to commencing employment is on the employing company. If a cleaner who is employed by a cleaning company is contracted to clean another company’s office, it is the cleaning company that is required to undertake that cleaner’s right to work check.

If this cleaner is found to be working illegally, then the cleaning company is potentially at risk of a civil penalty and/or criminal proceedings, but not the company that is contracting the cleaning company.

The Home Office does advise the following with regards contracted workers however:

“If illegal workers are removed from your business, it may disrupt your operations and result in reputational damage. There could be adverse impacts on your health and safety and safeguarding obligations, as well as the potential invalidation of your insurance if the identity, qualifications, and skill levels of your workers are not as claimed. Accordingly, you may wish to check that your contractors conduct the correct right to work checks on people they employ.”

The advice isn’t for third parties to undertake their own right to work check on contracted workers, but to make sure that any contracted company has robust right to work checks in place.

2. Undertaking right to work checks discriminately

On more than one occasion, I have been confronted with employers who are only undertaking right to work checks on candidates with ‘foreign names’. This is despite the candidates being British passport holders even. The risks of discriminating when undertaking right to work checks is very real when the checks aren’t being undertaken in the same way for all employees.

The Home Office have published a guidance document on this matter which is worth reviewing for all employers