The Home Office issued Guidance entitled ‘An employer’s guide to right to work checks’ in May 2014 which was further amended in December 2014. This is particularly significant in the light of the recent Immigration Act 2014 which allow for civil penalties against employers who employ individuals in the UK who do not have a right to work. Civil penalties can amount to a fine up to £20,000, should it transpire that an employee has been employed illegally.

The Guidance on initial reading may leave concerns for Japanese companies operating in the UK and hesitancy in employing Japanese and Japanese family members of EU, EEA and Swiss nationals who have current Immigration Status documents (including Indefinite leave to remain (ILR)) in old passports. This comes from the wording of the guidance that states “ILR must be in the current valid passport for the purpose of a right to work check.”

There are a range of resources for employers to assess prospective employee’s right to work as follows:

• The Right to Work Checklist
https://www.gov.uk/government/publications/right-to-work-checklist

• Updated Guidance issued by the Home Office – An employer’s guide to right to work checks
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/390363/an_employers_guide_to_right_to_work_checks_december_2014_v4.pdf

• An employer’s guide to acceptable right to work documents
https://www.gov.uk/government/publications/acceptable-right-to-work-documents-an-employers-guide

Employers will not be held liable for a civil penalty if they have correctly carried out the Home Office’s check list and followed its recommended three steps, namely obtaining original documents, check and then copy those documents. This will protect employers from liability should the employee be found to be working illegally.

The relevant section of the guidance reads as follows:
“If you have correctly carried out the above 3 steps [obtain-check-copy] you will have an excuse against liability for a civil penalty if the above named person is found working for you illegally. However, you need to be aware of the type of excuse you have as this determines how long it lasts for, and if, and when you are required to do a follow-up check.”

A potential employee without a current passport endorsed with ILR could provide a current Immigration Status Document together with an official letter or document from a UK Government Agency (i.e. National Insurance number) which is listed in List A – Acceptable documents to establish a continuous statutory excuse.

In respect of non-EEA family members of EU, EEA or Swiss nationals, the Home Office confirmed in their updated guidance that where an individual has a Residence card, Permanent Residence card, Accession Residence Card or Derivative Residence card, that endorsement can be in either the non-EEA migrant’s current or expired passport.

Some migrants may choose to obtain a Biometric Residence Permit (BRP) although not required to do so, simply to avoid the issue of employer’s hesitance to employ those without an endorsement in their current passport. This is particularly relevant for non-EEA family members of EEA nationals for whom there is no requirement under the EEA Regulations 2006 to register with the Home Office or obtain documentation issued by the Home Office.

Non-EEA national family members and EEA nationals themselves have a right to work under EU Law. This may leave employers in difficulty in that they are required to assess whether a person has a right to work, thereby considering their liability for civil penalty, and in such cases, it is open to employers to contact the Home Office for advice. Further guidance on EEA and non-EEA family members of EEA nationals can be found on the European Casework Instruction page on GOV.UK
For further information, please contact Koichiro Nakada – Head of Japan Business Group (koichiro.nakada@lewissilkin.com) and Yoko Nakada - Senior Associate, Deputy Head of Japan Business Group (yoko.nakada@lewissilkin.com).
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This information is supplied by Lewis Silkin LLP www.lewissilkin.comm

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