Right to work checks for UK Employers and Human Resources

In these difficult times of Brexit uncertainty, it is more important for employers to stay on top of its own immigration checks and HR procedures, especially if your business hires migrant workers.

Under Section 15 of the Immigration, Asylum and Nationality Act 2006, an employer may be liable for a civil penalty if they employ someone who does not have the right to work in the UK. Employers have a duty to prevent illegal working in the UK by people who are subject to immigration control. Where this is not complied with, an employer may face a financial penalty (civil penalty of up to a maximum of £20,000 per illegal worker) and in some cases, prosecution. An employer can avoid becoming liable for a civil penalty and prosecution by carrying out simple specified document checks on people before employing them, to ensure they are allowed to work in the UK. This check needs to be repeated when someone has temporary permission to be in the UK and to work. Conducting these checks in the prescribed manner will provide a statutory excuse against a civil penalty.

If the job applicant or employee cannot show their documents

Conducting such checks can become complicated, if your employee or potential employee cannot show you their documents because of an outstanding appeal, administrative review or application with the Home Office. Your legal representative should be able to advise on how your valued worker’s leave is extended by Section 3C of the Immigration Act 1971 (“Section 3C leave”) so you do not lose them.

The purpose of Section 3C leave is to prevent a person who makes an in-time application to extend their leave from becoming an overstayer. A person who has Section 3C leave remains subject to the conditions attached to their extant leave, meaning a person subject to a condition allowing employment may continue to work as before.

When does Section 3C apply?  

Section 3C applies when there is:

(a) A pending decision on application where a person with limited leave to enter or remain in the UK applies to the Secretary of State for variation of that leave, and:

  • the application is made before the leave expires and the leave expires without the application for variation having been decided; or,
  • the application for variation is neither decided nor withdrawn.

(b) A pending appeal when:

  • an in-country appeal could be brought (ignoring any possibility of appeal out of time with permission); or,
  • the appeal is pending (meaning it has been lodged and has not been finally determined).

(c) A pending administrative review when:

  • an administrative review could be sought; or,
  • an administrative review is pending, in that it has not been finally determined.

If you are an employer or an employee, our expert team of immigration and employment solicitors can navigate you through the law and the maze of numerous Home Office guidance material that may apply to you. We can help you establish your HR procedures and draft your employee handbooks so you stay compliant. Get in touch with us today on 0203 146 3549 / e:mail: info@lflegal.co.uk.

Disclaimer

All our articles are intended for informational purposes only and do not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information provided.

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