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Immigration Update May 2014

Changes to the Prevention of Illegal working checks announced

Following a recent consultation on the prevention of illegal working, the Home Office has recently released a "Code of practice on preventing illegal working" that updates the rules regarding civil penalties on employers who employ
undocumented workers. The new code contains changes to the right to work checks required by employers and raises the maximum financial penalties for non-compliance.

Up until recently, it has been necessary for specified documents to be checked and copied at the start of employment and on an annual basis (where the worker's immigration status in the UK is temporary) in order to provide a defence against a civil penalty for employing an illegal worker. However, the details of how and when the checks should be undertaken will now change.

From 16 May 2014, the main changes are as follows:

Removing the need for annual checks on those who have a temporary status and introducing a requirement to carry out a check when their status is due to expire, introducing a mechanism for establishing a defence for a period of six
months for outstanding immigration applications, and a 28 day period of flexibility in certain cases, requiring employers of migrant students to 'obtain and retain details of the term and vacation dates of the course the employee or prospective employee is undertaking, ruling that some expired passports and Biometric Residence Permits will not be acceptable documents, creating a revised list A and list B of acceptable documents which reduces the range of permissible documents for right to work checks (including removal of certain Home Office letters, non-passport travel documents and work permits which are not in a passport or biometric residence permit);  removing the requirement to make a copy of the front cover of passports that have been checked; requiring that the dates that copies of documents are made is recorded; reducing the civil penalty amount for early payment (fast payment option).

The changes in the new code, in particular the elimination of annual follow-up checks of employees on temporary stay visas will generally reduce the administrative burden in conducting right to work checks for employers. However, the substantial increase in financial penalty of up to £20,000 per worker means that it remains critical for employers to correctly perform the checks to minimise the risk of incurring civil penalties and falling foul of sponsor licence compliance obligations.