The statutory excuse – what it is, why you need it and how you get it
19th February, 2019
It is a common misconception that an employer would know if it was employing an illegal worker. Often organisations believe they are doing everything by the book until UK Visas & Immigration issues them with a fine, usually for £10,000 or more, for employing an illegal worker.
To avoid such a situation and to put your organisation in the best possible position to challenge such a fine, full and compliant right to work checks should be carried out on all prospective employees prior to commencement of their employment. We look at the ways in which this can be done as well as what to do if you uncover non-compliant right to work checks.
The statutory excuse
Provided that an employer has correctly conducted the right to work check and crucially, can evidence this, they will benefit from the ‘statutory excuse’. This means that if they are later found to be employing an illegal worker, they are excused from a civil penalty and so do not receive a fine which is currently set at up to £20,000 per illegal worker.
The duration of an employer’s statutory excuse depends upon whether or not the individual has an indefinite right to work in the UK. If they do not need permission to live and work in the UK, for example, they have indefinite leave to remain or, as it stands currently, are an EU national, the statutory excuse lasts for the duration of the individual’s employment. However, if an individual has a restricted right to work in the UK, for example, they have a visa which is valid for only a set period of time, the statutory excuse will expire once the individual’s right to work documentation expires and must be re-established.
The traditional three step check
The right to work check traditionally involves three steps:
- obtain the appropriate documents;
- check the documents; and
- copy and retain the documents.
An employer must request and physically obtain the original of the prospective employee’s right to work documentation. UKVI has a prescribed list of documentation it accepts as evidence of an individual’s right to work which is divided in to two sections, List A and List B.
An individual with a permanent right to work in the UK will be able to provide a document from List A. Alternatively, an individual with a temporary right to work in the UK will be able to provide a document from List B.
List B is separated into two different groups: Group 1 and Group 2. Group 1 lists the documents which establish a time limited statutory excuse that will last until the individual’s right to work in the UK expires. Whereas group 2 lists the documents which establish a time limited statutory excuse which will last for up to 6 months. Follow-up right to work checks must be carried out for any individual who provides right to work documentation from List B, otherwise the statutory excuse will be lost.
From 28 January 2019, employers can also accept short-form birth and adoption certificates together with a National Insurance number when conducting right to work checks, making it easier for British citizens who do not hold a passport to demonstrate their right to work.
The validity of the right to work documentation should be checked in the presence of the holder. The purpose of this check is to ensure that the documents are genuine, have not been tampered with and belong to and relate to the prospective employee.
In order to obtain the statutory excuse, an employer must keep a secure record of every document that they have checked, including the date that the check was conducted. Carrying out the check but failing to accurately record the date or failing to retain a complete copies will render the check useless.
Copies should be kept for the duration of the individual’s employment plus an additional two years. However, employers must still ensure compliance with their data protection obligations under the GDPR.
Online right to work checking service
With effect from 28th January 2019, employers are able to carry out compliant right to work checks using the Government’s online right to work checking service. The online service was initially launched in April 2018; however until recently, employers were still required to request paper documents from prospective employees in addition to relying on the online service.
The service is free to use and gives employers access to up-to-date information about an employee’s right to work. However it is reliant upon the employee carrying out the check and sharing the results with the employer using an “access code”.
The online checking service can be used by non-EEA nationals who hold biometric residence permits or biometric residence cards and EEA nationals who have been granted immigration status under the EU Settlement Scheme.
What if I discover that a right to work check hasn’t been done correctly?
The statutory excuse is only obtained if the check is carried out prior to the commencement of employment. If the check has not been done at this stage, or has not been done correctly but the individual has gone on to be employed in any event, the organisation will not hold a statutory excuse in the event that the individual is an illegal worker.
If this comes to light at a later date, even though it will not result in obtaining the statutory excuse, it is strongly recommended that a new right to work check is carried out. It is important to note that the date recorded for this right to work check should not be altered retrospectively to a date before the individual’s employment began, but be recorded accurately as at that date. The outcome of this check may be that the individual in question cannot prove their right to work, in which case you may need to go on to consider dismissal. Alternatively, you may be satisfied that the individual does have the right to work thereby reducing the risk of them being an illegal worker.
How can we help
To ensure that you are complying with immigration law, please do not hesitate to contact us for a step-by-step guide on how to carry out a right to work check. Our immigration team are able to provide advice to you and your employers on right to work checks as well as any other immigration law queries you may have.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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