Right to Work Checks A comprehensive guide for departments October 2015

1. Right to Work Checks A comprehensive guide for departments October 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 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 Assistant Tel: (2)89904/ / email david.richardson@admin.ox.ac.uk Humanities / MPLS / Colleges A – P Amira Harb - Staff Immigration Admin Assistant Tel: (2)89926 / email amira.harb@admin.ox.ac.uk Website: http://www.admin.ox.ac.uk/personnel/recruit/preempcheck/compulsorychecks/righttowork/

3. What we do • Advise departments, colleges and migrants on: • Tier 2 and Tier 5 process and requirements • Right to Work checks • Visitor immigration requirements • Process Tier 2 and Tier 5 Certificate of Sponsorship applications and hold all data for Tier 2 and Tier 5 migrants centrally. • 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. • Provide assurance 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. Content • The University’s sponsor licenses • Legislation and policy • Purpose of the legislation • What is an illegal worker? • Avoiding discrimination • Consequences of non-compliance • Who needs a right to work check? • How to complete a right to work check • Obtaining documents • Checking documents • Record and retaining documents • Completing CoreHR • Conducting repeat checks

5. Content • Documents which give permission to work • Validity of passports • Biometric Residence Permits • List A documents • List B documents • Categories of employee and worker • Employees, casuals and Tier 5 • External examiners • Tier 4 students • Tier 2 supplementary work • Summary

6. Sponsor Licenses • The University holds ‘Highly Trusted Sponsor Status’ with the Home Office and holds the following licences: • Tier 2 – to sponsor non EU employees to fill skilled roles (approx. 885 current sponsored visa holders) • Tier 4 – to sponsor students from overseas (5,115 current sponsored students) • Tier 5 – to sponsor supernumerary researchers and academics coming to collaborate (approx. 190 current sponsored visa holders) • Failure to comply with Right to Work check requirements poses serious risk to the University’s sponsor licences.

7. Legislation and Policy

8. 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

9. 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

10. Avoiding discrimination • RTW checks apply to all nationalities • Cannot make assumptions of a person’s nationality on the basis of name, race, appearance etc. • Equality Act 2010, 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 Equality Act if employees/ prospective employees are treated differently on the grounds of race.

11. 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)

12. Examples of non-compliance • Mr A commenced employment on 6 September 2015 • He forgot his right to work documents at interview and was asked to bring them to HR on his first day • He forgot his right to work documents on his first day. He was allowed to commence work and was asked to bring his documents the following day • His right to work was checked on 7 September 2015 • Consequence – no statutory excuse against illegal employment if the documents were later found to be fraudulent because the right to work check was not done before employment commenced. • What should the department have done? – sent Mr A home on his first day to get his right to work documents and not allowed him to commence work until a right to work check had been completed

13. Examples of non-compliance • Dr B started was engaged to do some casual work for four hours per week during term time. She has a Tier 4 visa. • She is also working 18 hours per week for three colleges. • The department did not ask her to complete a ‘Tier 4 Student Employment Declaration’ and did not know about her other work • Consequence – illegal employment of a Tier 4 visa holder. • What should the department have done? – asked Dr B to complete the ‘Student Employment Declaration’. If they had, they would have known that the work they were offering would have been in breach of her permitted hours on her Tier 4 visa and that they could not have employed her for this reason.

14. Examples of non-compliance • Ms C commenced employment on 6 January 2011 • A right to work check was completed in March 2011 • The Home Office contact the University in 2014 to advise that according to their records Ms C does not have the right to work in the UK (they have the ability to cross reference information from NI contributions with visa status) • It was found that Ms C had presented a fraudulent Indefinite Leave to Remain visa • Consequence – illegal employment of an individual with no right to work in the UK. No statutory excuse because a right to work check was not completed before work commenced. • What should the department have done? – completed a right to work check before employment commenced. Had this been done, there would be no sanction against the University because the fraudulent document was not obvious.

15. Examples of non-compliance • Mr D was employed as a casual worker in the museum shop as a Retail Assistant for 20 hours per week • He held a Tier 2 (General) visa with a private research company as a Research Assistant • Consequence – Illegal employment of a Tier 2 visa holder in breach of their visa conditions. Tier 2 visa holders may only take additional work under strict conditions. One of which is that the work must be the same type of work as the job for which the Tier 2 visa was issued (in this case, research). • What should the department have done? – checked the individual’s Tier 2 Certificate of Sponsorship (the individual should have received a copy from their primary employer) and sought advice from SIT to satisfy themselves that the casual work is permitted on the visa in question

16. Consequences of non-compliance • Impact on Tier 2, Tier 5 and Tier 4 (student) sponsor licences • Licences withdrawn - all sponsored workers and students required to leave the University and UK • Licences downgraded – may retain current visa holders but not sponsor new visa holders • 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 from a single college or department (including those who do not have any Tier 2 or Tier 5 sponsored migrants) = potentially serious consequences for entire Collegiate University.

17. Who needs a right to work check?

18. Who needs a RTW check? Employees and casual workers

19. Who needs an immigration check? Visitors Immigration status check = check, copy, sign, date and retain copy of passport and visa/immigration stamp. Retain copies for duration of visit

20. How to complete a right to work check

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

22. 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) – photocopies and electronic copies not acceptable. • Must see worker in person. • Those who work remotely should have an initial visit to Oxford to present their right to work documents. • In exceptional circumstances, a right to work check can be conducted via Skype/video link BUT the worker must send their original documents (passport, visa etc.) to the department before the right to work check via video link is conducted. This is not recommended.

23. 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). • Passports must be in date except: • For UK and EEA nationals • For those with an EEA Family Permits/ Residence Card • Check any difference in name – ask for further original documentation (i.e. marriage certificate) • Not sure? Ask SIT

24. 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 duration of employment/engagement and for two years after employment/engagement ends • Data protection - copies 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 during an audit • Send copy of Tier 2 and Tier 5 RTW docs to SIT

25. Step 4: update CoreHR • Completion is mandatory for all new employees, Tier 5’s and casual workers (for casuals, CoreHR will be completed by Data Services team) • SIT runs monthly audits from CoreHR to ensure right to work information is complete. The Key Contact will be notified where significant omissions or errors are found. • 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 – use CoreHR report to monitor right to work • Use User Guide http://www.admin.ox.ac.uk/media/global/wwwadminoxacuk/localsites/personnel/documents/corehr/processesuserguides/newstarter/PA10_Maintaining_Right_to_Work_Data_v1.1.pdf

26. Step 4: update CoreHR • Which staff need right to work check information completed on CoreHR? • All List B staff • All List A staff who started after Aug 2014 • NB: For departments classified RED at any stage during RTW audits – • All staff must have RTW information completed on CoreHR • NB: It would be useful for auditing purposes for departments to complete RTW information in CoreHR for all staff but this is not mandatory (unless department was classified RED during previous audits)

27. Blank for List A Blank for List B until repeat check Full name 3 months before visa expires

28. Step 4: update CoreHR • Which fields must be completed? • For List A document holders: • Date from – date of check • Right to Work Type – select List A • Permanent (List A) – select type of document • RTW date checked • RTW checked by • For List B document holders: • Date from – date of check • Right to Work Type – select List B • Limited (List B) – select type of document • Issue date • Expiry date • RTW date checked • RTW checked by • RTW date next check – three months before visa expiry

29. Step 5: repeat check (List B only) • 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 existing visa expires • Only required if extending contract beyond expiry date of visa • Applies to all List B document holders (Tier 1, Tier 2, Tier 4, Tier 5, spouse, dependant etc.) • No repeat checks for List A document holders

30. Step 5: repeat check (List B only) If extending contract beyond expiry of existing visa for existing employee/worker: Contact worker approximately 3 months before expiry of existing visa check that migrant plans to extend their visa and continue to monitor 2. Before expiry of existing visa, complete RTW check using the new visa (if available) following steps 1-4 3. Update CoreHR and list of List B’s with new information

31. Step 5: repeat check (List B only) • If new visa is not received from Home Office before expiry date of existing visa (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 • Update CoreHR and list of List B’s with new information

32. Step 5: repeat check (List B only) • If new visa is not received from Home Office by day 21 after the existing visa expired: • 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 and submit to Home Office • 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 • Update CoreHR and list of List B’s with new information

33. Step 5: repeat check (example) • Professor E’s Tier 2 dependant visa expires on 12 December 2015 • Action: • Contact Professor E approx. 12 September 2015 to enquire about her plans to extend her visa. She tells you her partner intends to extend their visa in October and she will be included as a dependant. • In mid November, contact Professor E to ask whether she has received her new visa from the Home Office. • Professor E confirms that she has her new visa • Professor E brings the new visa (in the form of a Biometric Residence Permit) to the department for a right to work check. • The department completes the check, records on CoreHR and updates list of List Bs with new information

34. Step 5: repeat check (example) • Dr F’s Tier 1 Exceptional Talent visa expires on 1 November 2015 • Action: • Contact Dr F approx. 1 August 2015 to enquire about his plans to extend his visa. He tells you he intends to extend his visa in early September. • In early October contact Dr F to ensure he did apply for an extension and ask whether he has received his new visa. He hasn’t. • Request proof of application. Dr F produces a letter from the Home Office dated 23 September 2015 confirming they have received his application. This is valid proof of right to work up to 28 November 2015. • On 6 November 2015 Dr F confirms that he has received his new visa (in the form of a Biometric Residence Permit) and brings it in for the department to do a right to work check. • The department completes the check, records on CoreHR and updates list of List Bs with new information

35. Step 5: repeat check (example) • Dr G’s Tier 2 visa expires on 1 January 2016 • Action: • Contact Dr G approx. 1 October 2015 to enquire about his plans to extend his visa. He tells you he intends to apply for ILR in late November. • In early December contact Dr G to ensure he did apply for ILR and ask whether he has received his new visa (unlikely). He hasn’t. • Request for proof of application. Dr G produces a letter from the Home Office dated 29 November 2015 confirming they have received his application. This is valid proof of right to work up to 28 January 2016. • On/shortly before 21 January 2016, contact Dr G to check whether he has received his new visa. He still hasn’t. • Complete the Employers Checking Services form on the Home Office website (no later than 21 January 2016) and await response. • On 27 January a Positive Verification Notice is received from the Home Office. This is valid as proof of right to work until 27 July 2016. • Keep in regular contact with Dr G to check if he has received his new visa. • On 4 February 2016 Dr G confirms he has received his new visa (in the form of a Biometric Residence Permit) and brings it in for the department to do a right to work check. • The department completes the check, records on CoreHR and updates list of List Bs with new information

36. BREAK HELP YOURSELF TO TEA AND COFFEE

37. Right to Work documents List A (permanent) List B (time-limited)

38. 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

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

40. Validity of passports • Expired British and EEA passports are acceptable • All visas (including ILR, Tier 1, Tier 2, Tier 4) must be presented in a valid passport as proof of right to work EXCEPT • EEA Family Permits, EEA Family Member Residence Cards and EEA Permanent Residence Cards (issued to non-EEA family members of EEA nationals) which may be accepted in an expired passport • Those who have a visa in an expired passport must apply to have the visa transferred to a Biometric Residence Permit using a new valid passport before they start work

41. Transferring a visa • Those who have an Indefinite Leave to Remain visa in an old passport will need to apply using the ‘NTL No Time Limit’ application at https://www.gov.uk/transfer-visa • This currently cost £260 • Those who have a limited visa (such as Tier 4, Tier 1, dependant etc.) will need to apply using the ‘TOC Transfer of Conditions’ form at https://www.gov.uk/transfer-visa • This currently cost £183 • Once they have applied to transfer their visa, use the Employers Checking Service form at https://www.gov.uk/government/publications/employer-checking-service-form-check-employees-right-to-work to request a Positive Verification Notice as proof of right to work until their new visa arrives • Must not employ until you have received and checked either the new visa or a Positive Verification Notice • If relying on a Positive Verification Notice – must complete a new right to work check on the new visa once received and before the PVN expires (usually six months).

42. Biometric Residence Permits and vignettes – what’s the difference? • Vignette in passport • Issued to all overseas applicants • For those coming for more than six months the vignette will be valid for only one month – BRP must be collected when they arrive in the UK • Biometric Residence Permit • Issued to all in-country applicants • Issued to overseas applicants coming for more than six months but must collect when arrive in the UK

43. BRP’s for overseas applicants • For migrants coming for more than six months the vignette (sticker) in passport will be issued for one month duration to enable migrant to enter the country • Must collect BRP from Post Office (usually St Aldate’s) when they arrive and before vignette in passport expires • Those coming for less than six months will not be required to collect a BRP • Right to work implications • Advise individual to collect BRP from Post Office before they start work • If they can’t collect BRP before they start, you can accept the vignette in passport as proof of right to work but it is only valid up to the expiry date on the vignette – you must complete a new right to work check (using the BRP) before the vignette expires

44. List A document 1 • British passport/ right abode: • British nationals • British Nationals (Overseas) need a visa to work – List B not List A • British Dependent Territories Citizen passport which states that the person has a connection with Gibraltar is not acceptable evidence of right to work – rarely seen • Any certificate of entitlement to right of abode in the UK must be held in a valid passport • 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

45. List A document 2 • Passport or ID card for a national of European Economic Area or Switzerland. • Free to live and work in the UK without restriction • NB Croatian nationals require a registration certificate / proof of exemption in order to take employment

46. List A document 3 • A residence permit, registration certificate or document certifying permanent residence issued to an EEA/Swiss national: • Residence permits or registration certificates are blue (except for those for Swiss nationals, which are pink) and contain the photograph of the holder

47. List A document 4 • A Permanent Residence Card issued to the family member of an EEA/Swiss national: • 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

48. List A document 5 • A current Biometric Residence Permit indicating that the person named is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK: • 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

49. List A document 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 passport

50. List A document 7 • A current Immigration Status Document issued 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, 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: • Rarely seen but 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.)