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Right to Work Checks A comprehensive guide for departments March 2015

Right to Work Checks A comprehensive guide for departments March 2015. Staff Immigration Team. Staff Immigration Team. James Baker – Staff Immigration Team Leader Tel: (2)89908 / email james.baker@admin.ox.ac.uk Natalie Goldsmith – Staff Immigration Officer

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Right to Work Checks A comprehensive guide for departments March 2015

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  1. Right to Work Checks A comprehensive guide for departments March 2015 Staff Immigration Team

  2. Staff Immigration Team James Baker – Staff Immigration Team Leader Tel: (2)89908 / email james.baker@admin.ox.ac.uk Natalie Goldsmith – Staff Immigration Officer Tel: (2)89912 / email natalie.goldsmith@admin.ox.ac.uk Tim Currie – Staff Immigration Officer Tel: (2)89903 / email tim.currie@admin.ox.ac.uk Angela Dolby – Staff Immigration Assistant Tel: (2)89904 / email Humanities / MPLS / Colleges A – P Lisa Crook – Staff Immigration Assistant Tel: (2)89919 / email lisa.crook@admin.ox.ac.uk Medical Sciences / Social Sciences / Colleges Q – W David Richardson – Staff Immigration Admin Assistant Tel: (2)89926 / email david.richardson@admin.ox.ac.uk Website: http://www.admin.ox.ac.uk/personnel/permits/

  3. What we do • Advise departments, colleges and migrants on Tier 2 and Tier 5 process and requirements. • Process Tier 2 and Tier 5 Certificate of Sponsorship applications. • Process Tier 2 and Tier 5 leave to remain applications on behalf of migrants. • Hold all data for Tier 2 and Tier 5 migrants centrally. • Advise departments and colleges on right to work in the UK. • Advise departments and colleges on visitor immigration. • Manage complex cases and matters of non-compliance with external legal input where necessary. • Provide regular training on Tier 2, Tier 5, right to work and visitors. • Report to the Audit and Scrutiny Committee on immigration and right to work compliance. • Represent the collegiate University’s comments and concerns with immigration policy to the Home Office.

  4. Current news

  5. Content • Why do right to work checks? - legislation and policy • Consequences of non-compliance • Who needs a right to work check? • Casuals (incl. students) • Documents which give permission to work • How to complete a right to work check • Summary

  6. Legislation and Policy

  7. Legislation • Immigration, Asylum and Nationality Act 2006 • Right to work legislation came into effect on 27 January 1997 • Updated in February 2008 • Latest update to the Act – May 2014

  8. Purpose of the legislation • Make it harder for people with no right to work in the UK to gain or keep employment • Put the responsibility onto employers to prevent illegal working • Make it easier for the Home Office to sanction employers who employ illegal workers • Provide employers with a statutory excuse against sanction

  9. Consequences of non-compliance • Impact on Tier 2, Tier 5 and Tier 4 (student) sponsor licences • Licences withdrawn - all sponsored workers and students will be required to leave the University and the UK • Licences downgraded – revocation of some benefits of holding Highly Trusted Sponsor status • Prevent the recruitment of international talent (students and employees) • On-the-spot fines of up to £20,000 for each illegal migrant • Up to 2 year prison sentence and/or an unlimited fine • Financial and reputational loss • A breach of Home Office requirements from a single college or department (including those who do not have any Tier 2 or Tier 5 sponsored migrants) may result in serious consequences for entire Collegiate University.

  10. What is an illegal worker? • A person who is “subject to immigration control” (i.e. requires a visa to work in the UK) and: • does not hold the necessary visa to work in the UK and/or • is working in breach of their visa conditions (i.e. in a role in which their visa doesn’t cover/ for more hours than their visa permits)

  11. Who needs a right to work check?

  12. Who needs a RTW check? • The following MUST HAVE a right to work check: • Employees paid through payroll • Casual staff paid through payroll • Anybody else who gets a payslip • All Tier 5 migrants • The following DO NOT need a right to work check: • Anybody working entirely outside of the UK • Self employed (HMRC rules) • Agency (done by Agency) • Temporary Staffing Service (done by TSS) • Business Visitors from overseas coming for 1 day or less • Visitors from within the UK or EEA • Anybody who has been continuously employed since before 27 January 1997 • The following SHOULD have an immigration status check: • Anybody to whom you have issued a letter to facilitate an Academic, PPE (Permitted Paid Engagement) visitor visa application/entry • Anybody to whom you have issued a letter to facilitate Business Visitors visa application/entry (unless coming for very short visit, i.e. to attend a one-day conference) • Anybody doing Work Experience • Voluntary workers

  13. Avoiding discrimination • RTW checks apply to all nationalities • Cannot make assumptions of a person’s nationality on the basis of name, race, appearance etc. • Race Relations Act 1976, employers are required to treat all job applicants equally. Home Office advises that a right to work check should be completed for all prospective employees, and at the same stage of the recruitment process. • The collegiate University risks sanction under the Race Relations Act if employees/ prospective employees are treated differently on the grounds of race.

  14. List A and List B documents • Two lists of documents provided by the Home Office which can be accepted as proof of right to work • Only documents on these lists are acceptable • Every employee and casual must provide one of the documents on the lists before work commences • List A documents: • Permanent proof of right to work – no repeat checks required during employment • British/EEA passport and indefinite leave to remain visa holders • List B documents: • Time limited right to work – a repeat check must be done for ALL List B’s before the document expires if employment is expected to continue • Work visa/ Biometric Residence Permit holders i.e. Tier 1, Tier 2, Tier 4/student, Tier 5, dependant visa • See https://www.gov.uk/government/publications/acceptable-right-to-work-documents-an-employers-guide for photographs

  15. New employees, casuals & Tier 5 • Right to work check must be completed before work starts – report to relevant HR/ admin person on first day before starting work • No statutory excuse if right to work check is done after work starts and person is found not to have right to work • Processes must be in place within each department to sufficiently manage right to work checks for all staff, casuals and relevant visitors (this will be audited) • Send copies of right to work documents for any Tier 2 or Tier 5 sponsored migrants to SIT • Keep up to date list of all List B document holders

  16. Casuals • Process • Complete right to work check before work starts • Fill in new casual payroll form and send to casual payroll • Future state (early 2015) – casual will not be paid unless right to work information is completed on the casual payroll form • Cannot be considered a casual for longer than 12 weeks (University policy)

  17. Repeat engagements of casuals • Where a department would like to engage a casual again either as a casual or an employee, the following rules apply for checking right to work: • Where the individual is a List A document holder, the department may rely on the previous right to work check if you retained copies of the previous right to work check. • Where the individual is a List B document holder, the department must complete a new right to work check before each new engagement commences. This applies to all List B document holders (Tier 1, Tier 2, Tier 4, Tier 5, dependant, spouse etc.) • Why do we need to do another check for a List B document holder who has been employed before? • Some visas carry restrictions on hours/ types of work and you need to check that the new engagement does not breach those restrictions • The visa holder’s status may have changed (e.g. they may have changed from a dependant to a student in which case they will have new restrictions on their visa)

  18. Tier 4 students • Note restrictions on hours - usually permitted to work 20 hours per week during term time and full time during vacations • Evidence of term and vacation dates required: • Printout from the student’s education institution’s website or other material published by the institution confirming its term and vacation dates for the student’s course of study. You must also check the web link to confirm it is genuine, OR • A letter or email addressed to the student from their education institution confirming term time dates for the student’s course, OR • A letter addressed to the department from the education institution confirming term time dates for the student’s course. • Declaration from student confirming that they are not working elsewhere in excess of their permitted hours during term time required – http://www.admin.ox.ac.uk/personnel/recruit/preempcheck/compulsorychecks/righttowork/addstudent/ • New right to work check required before each engagement

  19. Tier 4 students • Undergraduate students: • Normally work to term dates • Print out of institutions term and vacation dates sufficient • Term dates for Oxford students http://www.ox.ac.uk/about/facts-and-figures/dates-of-term • Graduate students: • Have year round study commitments • Generally should not work in excess of 20 hours per week • Print student paid employment guidelines at http://www.admin.ox.ac.uk/edc/policiesandguidance/policyonpaidwork/ • Where a graduate student (who is a Tier 4 visa holder) wishes to work beyond 20 hours per week, they must provide written permission from their supervisor. Template supervisor permission letter at http://www.admin.ox.ac.uk/personnel/recruit/preempcheck/compulsorychecks/righttowork/addstudent/ • If not Oxford students, check terms of study

  20. Documents which prove a person’s right to work in the UK List A (permanent) and List B (time-limited)

  21. EEA countries Nationals of these countries may reside and work freely in the UK – List A document holders

  22. List A documents • (1) A passport showing the holder is a British citizen/ a citizen of the UK and Colonies having the right of abode in the UK. • A person with right of abode has permission to live and work in the UK without restriction • A passport describing the holder as a British Dependent Territories Citizen which states that the person has a connection with Gibraltar is not acceptable evidence of right to work – rarely seen • A passport describing the person as a Citizen of the UK and colonies will only be acceptable if it contains the words ‘holder has the right of abode in the UK’ – rarely seen • Any certificate of entitlement to right of abode in the UK must be held in a valid passport (i.e. the passport must be in date) • British Nationals (Overseas) need a visa to work – List B not List A

  23. List A documents • (2) A passport or national identity card showing the is a national of a European Economic Area country or Switzerland. • EEA and Swiss nationals are free to live and work in the UK without restriction • Croatian nationals require a registration certificate / proof of exemption in order to take employment • (3) A residence permit, registration certificate or document certifying or indicating permanent residence issued by the Home Office to a national of an EEA country or Switzerland: • Residence permits or registration certificates are blue (except for those for Swiss nationals, which are pink) and contain the photograph of the holder

  24. List A documents • (4) A Permanent Residence Card issued by the Home Office, to the family member of a national of a European Economic Area country or Switzerland: • Family members of nationals of EEA/ Switzerland may hold a permanent residence card • The EEA national under which the family member has obtained permanent residence, must be lawfully residing in the UK in order for the family member to retain their rights to reside and work freely in the UK

  25. List A documents • (5) A current Biometric Residence Permit issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK: • The Biometric Residence Permit is a micro-chipped credit card sized card issued to non-EEA nationals who have spent a certain amount of time residing in the UK (or who is the family member of a non-EEA national who also holds indefinite leave to remain in the UK) • Although this type of permit allows the holder to remain in the UK indefinitely, the Biometric Residence Permit must be renewed every ten years, so employers must check that the expiry date of the permit has not lapsed

  26. List A documents • (6) A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK: • Must be in a valid passport • Usually in the form of a sticker in the holders passport. • This type of endorsement has been in use since 2003 • You may also see various ink stamps endorsing a passport which may permit the holder to indefinite leave to remain in the UK (but it must be in a valid passport)

  27. List A documents • (7) A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer: • Immigration Status Documents were replaced by Biometric Residence Permits in 2012 but there are still some in circulation • Evidence of the National Insurance Number must be in the form of an official document (i.e. a National Insurance Card, letter from HMRC, P45 or P60.)

  28. List A documents • (8) A full birth or adoption certificate issued in the UK which includes the name(s) of at least one of the holder’s parents or adoptive parents, together with an official document giving the person’s permanent National Insurance number and name: • Short birth certificates are not valid for this purpose. • The full birth certificate must contain the details of at least one parent. • Evidence of the National Insurance Number must be in the form of an official document (i.e. a National Insurance Card, letter from HMRC, P45 or P60.).

  29. List A documents • (9) A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer: • The birth certificate must contain the details of at least one parent. • Evidence of the National Insurance Number must be in the form of an official document (i.e. a National Insurance Card, letter from HMRC, P45 or P60.)

  30. List A documents • (10) A certificate of registration or naturalisation as a British citizen together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer: • A certificate of registration is an A4 certificate describing the holder as a British Citizen • Evidence of the National Insurance Number must be in the form of an official document (i.e. a National Insurance Card, letter from HMRC, P45 or P60.)

  31. List B documents • A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question: • Sticker in the passport • Some permits/visas contain restrictions on the type of work that the holder can do, and/or, the place that they are permitted to work (e.g. Tier 2 and Tier 5) • Some permits/visas contain restrictions on the number of hours the holder is permitted to work (e.g. Tier 4) • Other types of visa include Tier 1, Tier 5 YMS, Tier 4 DES, PBS dependant, spouse, UK Ancestry • Passport and visa must be current (i.e. in date)

  32. List B documents • (2) A current Biometric Residence Permit issued by the Home Office to the holder which indicates that the named person can currently stay in the UK and is allowed to do the work in question: • A micro-chipped credit card sized card • Some BRP’s contain restrictions on the type of work that the holder can do, and/or, the place that they are permitted to work (e.g. Tier 2 and Tier 5) • Some permits/visas contain restrictions on the number of hours the holder is permitted to work (e.g. Tier 4) • Other types of visa include Tier 1, Tier 5 YMS, Tier 4 DES, PBS dependant, spouse, UK Ancestry • BRP must be current (i.e. in date)

  33. List B documents • (3) A Residence Card issued by the Home Office to a non EEA/Swiss national who is a family member of an EEA/ Swiss national or who has a derivative right of residence: • Non-EEA family members of EEA nationals may obtain permission to work in the UK in the form of an EEA family permit. • Simply proving relationship with an EEA national (i.e. by presenting a marriage certificate) is not sufficient proof of right to work • Can be in an expired passport

  34. List B documents • A current Immigration Status Document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued: • This is usually a paper document containing a vignette indicating the holder’s immigration status • These are no longer issued (since 2012) but some may still be in circulation. • Evidence of the National Insurance Number must be in the form of an official document (i.e. a National Insurance Card, letter from HMRC, P45 or P60.)

  35. List B documents • (5) A Certificate of Application issued by the Home Office to a family member of a national of EEA/Switzerland stating that the holder is permitted to take employment which is less than 6 months old together with a Positive Verification Notice from the Home Office Employer Checking Service. • Family members of EEA nationals may apply for a residence card as proof of their right to work in the UK • Under European law, many of these applicants are permitted to work whilst their application is being considered and are issued with a Certificate of Application by the Home Office • The certificate of application must be no more than six months old and must be verified by the ‘Employers Checking Service’ before the person can commence employment • Employers checking service https://www.gov.uk/government/publications/employer-checking-service-form-check-employees-right-to-work

  36. List B documents • (6) An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service: • Usually issued to Asylum Seekers. • The holder may have restrictions on the type of work they can do and/or the number of hours they can work. • The ARC must be verified by the ‘Employers Checking Service’ before the person can commence employment. • Employers Checking Service https://www.gov.uk/government/publications/employer-checking-service-form-check-employees-right-to-work

  37. List B documents • (7) A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question: • Issued when an employer cannot check right to work because the person’s passport and visa are with the Home Office in relation to an outstanding application or appeal • Positive Verification Notice valid for six months • Employers checking service https://www.gov.uk/government/publications/employer-checking-service-form-check-employees-right-to-work

  38. Not sure if List A or List B? Ask SIT

  39. How to complete a right to work check

  40. Right to work check process 1 2 3 4 5 NB: Use the Right to Work Checklist at http://www.admin.ox.ac.uk/personnel/recruit/preempcheck/compulsorychecks/righttowork/ to ensure you follow all of the required steps in full

  41. Step 1: obtain document(s) • Only documents from the Home Offices List A or List B are acceptable proof of right to work • Must see original document(s) • Must see worker in person • Those who work remotely should have an initial visit to Oxford to present their right to work • In exceptional circumstances, a right to work check can be conducted via Skype/video link BUT the department must be in possession of the employee’s original documents (passport, visa etc.) when the right to work check via video link is conducted.

  42. Step 2: check document(s) • Document appears genuine – not expected to be experts but should reject document if it is “reasonably apparent” that it is not genuine/ does not belong to the holder • Photographs and DOB consistent across documents and with the appearance of the holder • Visa in date and permits work in question (note Tier 4 restrictions on hours and Tier 2 and Tier 5 restrictions on work) • Check any difference in name – ask for further documentation (i.e. marriage certificate)

  43. Step 3: copy and retain document(s) • Passports - copy all pages with photo, expiry date, nationality, DOB, signature, visa, biometric details • All other documents – copy in full (both sides) • Sign, print name and date copy – include declaration to confirm originals seen • Retain for two years after employment ends • Must be held securely • Keep copy of right to work documents attached to inside front cover of Personnel files so that documentation can be found easily by SIT, external auditors and the Home Office • Send copy of Tier 2 and Tier 5 RTW docs to SIT • If a List B document holder – add to your list of all List B document holders

  44. Step 4: update CORE • Completion is mandatory for all new employees, Tier 5’s and casual workers • SIT will run audits from CORE • Keep up to date list of List B document holders, visa expiry dates and type of visa • Have demonstrable system for ensuring list is always up to date • All List B’s should be in CORE • Some departments have put right to work information for all staff (even pre-2012) into CORE

  45. Step 5: repeat check (List B only) • Applies to all List B document holders (Tier 1, Tier 2, Tier 4, Tier 5, spouse, dependant etc.) • Not required if contract will not be extended beyond expiry date of existing visa • What is a repeat right to work check? • A document check to determine whether a worker can continue to work beyond expiry date of their existing visa/document • Must ensure that a new visa is received/ worker is in the process of applying for a new visa before the exiting visa expires • NB: repeat checks are only required for LIST B document holders. No repeat checks for List A document holders

  46. Step 5: repeat check (List B only) If extending contract beyond expiry of existing visa: Contact worker approximately 3 months before expiry of existing visa check that migrant plans to extend their visa 2. Before expiry of existing visa, complete RTW check using the new visa (if available) following steps 1-4

  47. Step 5: repeat check (List B only) • If by expiry date of existing visa the new visa is not yet received from Home Office (and therefore you cannot complete a repeat check using the new visa): • Seek and retain proof that the application was made to the Home Office (e.g. HO acknowledgement letter, proof of postage) before the existing visa expires. • Permission to work extended for 28 days while awaiting new visa. • On/ before 21st day after original visa expired, complete RTW check on the new visa (if available) following steps 1-4

  48. Step 5: repeat check (List B only) • If by 21st day after expiry date of existing visa the new visa is still not yet received from Home Office: • Contact Employers Checking Service to confirm application received and RTW can continue https://www.gov.uk/government/publications/employer-checking-service-form-check-employees-right-to-work • Complete online form • Positive verification – right to work will continue for six months whilst awaiting new visa. Negative verification – contact SIT immediately • Complete RTW check using new visa once received and within the six months time frame

  49. Summary and process • Right to work required for all employees, casuals and Tier 5 – before work starts • Immigration checks required for Academic, Business and PPE visitors - before visit/work starts • Ensure a demonstrable system is in place to record and monitor right to work – the Home Office may expect to see this • Keep right to work information inside front cover of personnel files for auditing purposes • Keep an up to date list of List B document holders and expiry dates – can run a report in CORE • Be mindful of the significant risk to the collegiate University and sponsored students and colleagues of non-compliance • Right to work and immigration is being closely monitored by the Audit and Scrutiny Committee • Contact Natalie/James with any questions

  50. Next steps • Review process for recording right to work and immigration checks for all staff, casuals and visitors – audit coming soon. • Ensure that your list of List B document holders is always up to date and includes expiry date and type of visa • If List Bs aren’t all in CORE, please do so urgently – deadline was 1 October 2014 • Suggest that anybody who has involvement in checking right to work attends a training session if they have not already done so • Ensure your Key Contact is involved with any significant issues

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