Draft Code of Practice Prevention of Illegal Working

The Home Office has published its revised Code of Practice on Preventing Illegal Working (the “Draft Code”) covering the changes to the right to work check requirements for EEA citizens which come into effect on 1 July 2021.

Set out below are the changes that the Draft Code introduces, how this will affect UK employers and the areas of continued uncertainty.

As previously advised, employers must check that all employees have the legal right to work (“RTW”) for them in the UK. Failure by an employer to undertake the correct RTW check can lead to a civil or criminal penalty. The Draft Code concerns itself with the civil penalty regime only.

Provided an employer has completed the RTW check correctly and can adequately evidence this, if it later transpires the employee did not have the legal RTW for them in the UK, the employer should have a statutory defence to the offence of employing someone illegally.

The Draft Code covers the changes to the RTW checks for EEA / Swiss nationals, and any third country family members, which will come into effect on 1 July 2021. This ties in with the 30 June 2021 deadline for applications to be submitted under the EU Settlement Scheme to enable EEA / Swiss nationals and family members to remain living and working in the UK legally.

The Draft Code indicates that a RTW check undertaken under the current Code of Practice will not have to be repeated retrospectively.

It is crucial to note that, if a RTW check is undertaken before 1 July 2021, it is the current Code of Practice that will apply to the check, even if the individual is due to commence their employment on or after 1 July 2021.

For example, if an employer undertakes a RTW check on an EEA national prior to 1 July 2021, they would only be required to see the individual’s passport in order to establish a statutory excuse, even if the individual’s employment commenced on or after 1 July 2021.

Any RTW checks undertaken after this date will require the EEA national to evidence that they have the appropriate immigration permission to undertake their proposed role.

However, if a breach occurs on or after 1 July 2021, the Draft Code will apply when calculating the penalty, even if the check was undertaken before 1 July 2021. In addition, any follow up checks required from 1 July 2021 must meet the requirements of the Draft Code.

The Draft Code amends the list of acceptable documents to include those issued to EEA / Swiss nationals, and their family members, by the Bailiwick of Jersey or Guernsey. There is also the addition of the Frontier Work Permit as an acceptable document. Irish passports are also now included.

The lists of acceptable documents are still called List A and List B. List A sets out the acceptable documents to establish an ongoing statutory excuse. In other words, if the RTW check is made using a document from List A, no follow up check will be required.

List A makes it clear that a passport may be current or expired if it belongs to a British or Irish citizen. Passports for all other nationalities must be current.

List B remains the list for those employees with time limited permission to live and work in the UK and has a several additional documents for EEA / Swiss nationals.

If an employer has made the RTW check using a List B document, they must diarise a follow up check at the appropriate time.

Where an individual is unable to provide a document which satisfies the RTW check requirements, for example, because the individual has an immigration application pending with the Home Office, an employer may obtain a statutory excuse, which lasts for six months, through being issued with a Positive Verification Notice (“PVN”) by the Employer Checking Service (“ECS”).

The Draft Code states that, for existing employees, an employer will continue to have a statutory excuse for up to 28 days from the expiry date of their immigration permission to enable it to obtain a PVN.

However, the 28 day grace period does not apply to checks carried out before an individual starts employment. In those circumstances, the employer should delay the individual’s start date until it receives a PVN.

The Draft Code also states that if the ECS has not considered an employer’s request within five working days, an automatic response will be sent to the employer informing them that the prospective employee may be hired. If the individual has started work on the basis of this message from the Home Office but a Negative Verification Notice is then received, employers should seek employment advice urgently before terminating the employment.

Any response from the ECS must be kept on file so that, if required, it can be presented to the Home Office as a defence against liability to pay a civil penalty.

The Draft Code also includes details of the current Covid-19 adjusted RTW check. The adjusted process is for checks carried out from 30 March 2020 to 20 June 2021 inclusive in acknowledgement of the fact that most offices have had to shut and many employees have been working from home. At the time of writing, the proposed ending of this concession is currently 21 June 2021. Given the UK Government’s announcement on 14th June 2021 to delay the lifting of all lockdown restrictions until 17th July 2021, we await a further statement as to whether the Covid-19 adjusted RTW concession would be extended until 17th July 2021.

A number of employers and stakeholders are calling for the Covid-19 RTW concession to be extended as, even if all lockdown restrictions are lifted on 17th July 2021, a significant number of employers are not seeking to require all their personnel to return to the office for several months.

The Draft Code has primarily been produced to provide employers with guidance on how to complete a RTW check on EEA / Swiss nationals, and their third country family members, from 1 July 202. Any further significant changes to the Draft Code are not anticipated before it is published in its final version on 1st July 202