News & Insights

New guidance on Right to Work checks

EEA nationals right to work, supplementary employment and higher penalties

The government has recently published an updated ‘Employer’s Guide on right to work checks’, with three key areas of change from the previous guidance.

  1. Substantial increase in the maximum civil penalty fines
  2. Right to work checks for EEA nationals and their non-EEA family members
  3. Supplementary employment for sponsored workers

Substantial increase to the maximum civil penalty fines

From 13 February 2024, employers who fail to undertake proper right to work checks for their employees could face fines of up to £45,000 for a first breach, or £60,000 for multiple breaches per worker found to be working without immigration status or outside of their visa conditions.

Right to work checks for EEA nationals and their non-EEA family members

Since September 2023, the Home Office have been automatically extending EUSS pre-settled status holders’ immigration status one to two months before the expiry date.

Employers must continue to conduct right to work checks for individuals who hold pre-settled status. Any follow-up checks must be made in the last month of their original period of leave to ensure the employer records the new period of leave.  If an individual does not meet the requirements for pre settled status, the Home Office may cancel leave at any time.

There is further guidance on how to deal with EEA nationals without lawful immigration status. It is recommended that where an employer identifies an existing employee who did not make an application to the EUSS, they are now required to take “appropriate action”, which may include contacting the Home Office for support or taking steps to terminate employment.

In earlier guidance, there was an extended procedure that allowed employers to request their employees to make an application to the EUSS, before taking steps to terminate employment. This procedure has been removed from guidance.

If an EEA national or non-EEA family member applies for a job but has not applied to the EUSS and has no alternative immigration status in the UK, they will not pass an employer’s right to work check.

There is a telephone support line for employers helping on right to work checks together with online training availability published in the new guidance.

Supplementary employment

The guidance at Annex B explains how sponsored workers under certain work categories can take on supplementary employment for up to 20 hours per week. It also clarifies that any overtime with the original sponsor and in the same employment as on the individual’s Certificate of Sponsorship must comply with the Working Time Regulations however, it does not count towards supplementary employment.

Where employers offer supplementary employment, it is important that they establish whether the individual is eligible to carry out the work and whether they are doing any other supplementary employment which could exceed the 20 hours permitted per week.

An employer may ask the individual to verify the supplementary employment conditions with the individual’s current sponsor by obtaining evidence to confirm their job description and occupation code of their sponsored employment (if the supplementary employment is not in a shortage occupation), their normal working hours and confirmation that they are still employed.

Employers must also carry out a right to work check to ensure the individual is permitted to take on supplementary work.

If you require any assistance on right to work checks or have come across any difficulties with follow up checks, please get in touch at [email protected]