UK Visas and Immigration (UKVI) has produced an updated employer’s guide to right to work checks.  This updates the previous guide which applied from 26 January 2023.

What date does this apply from and why do employers need to know about it?

This guide applies from 13 February 2024 and it is important that all employers comply with it when carrying out right to work checks, so that they can establish a statutory defence if they are found to be employing an illegal worker.

This is particularly important given that the civil penalty for employing an illegal worker has tripled from 13 February 2024 (see our blog posts on key dates for immigration changes 2024 and prevention of illegal working - new draft code and starting fine of £45,000 per worker.

What has changed?

While much of the guidance remains the same, one of the main areas where there is additional guidance provided is in relation to supplementary employment, which is an area which affects many care providers, as well as some other organisations.

Supplementary employment is where there is a worker who works for (and is sponsored by) organisation A and who wishes to work for another employer (organisation B) in addition.  They are permitted to do this under the immigration rules in specific circumstances which include the following:

1. The work for organisation B is either in a job on the shortage occupation list (which currently includes both carers and senior carers) or in the same profession and at the same professional level as the job for which the Certificate of Sponsorship was assigned.
2. The work for organisation B is for no more than 20 hours per week.
3. The worker continues to work for organisation A in the job for which the Certificate of Sponsorship records them as being sponsored.
4. The worker does not carry out work for organisations other than organisation A for more than 20 hours per week.
5. The 20 hours per week takes place outside of the hours when the worker is contracted to work for organisation A.

The guidance states that overtime with organisation A does not count as part of the 20 hours referred to above.

What should employers do to comply with the guidance on supplementary employment?

In addition to the normal right to work checks (either using the Home Office online service, a manual document check or an IDSP) the guidance now sets out that employers should take additional steps to ensure that the worker meets the above requirements. This could include obtaining a letter (or other evidence) from their sponsor (organisation A) which confirms:

• The worker is still working for their sponsor (organisation A);
• the job description and occupation code of their sponsored employment; and
• their normal working hours.

The guidance also advises asking the worker if they are doing any other supplementary employment with another employer to ensure they will not be doing more than 20 hours a week in total of supplementary employment.  It is sensible for employers (organisation B) to obtain this in writing so that they have evidence they can produce to UKVI if required.

Once this information has been obtained, we would suggest that employers (organisation B) should put processes in place to ensure that the 20 hours per week is not exceeded at any point (for example ensuring that any managers in charge of rotas are aware of this limit).

The guidance does not deal with what to do if an employee is working fewer hours than is stated on the Certificate of Sponsorship for organisation A. This could be a breach of their conditions of stay and could mean that they are technically an illegal worker. We would suggest that you seek advice if this situation arises.

How can we help?

We can review any right to work processes and policies you have and advise on compliance with right to work guidance and any improvements that could be made. We can also provide training on carrying out right to work checks and advise on responses to Home Office enforcement correspondence.

If you have any questions or would like advice on right to work or employing individuals on the basis that they can work for up to 20 hours per week, please contact Hazel Findlay or Katherine Sinclair.