Have you ever been in a situation where you check if your employee can legally work, and it says they can, but later you hear they’ve been working illegally? It sounds strange, right?
Well, the world of immigration is more complicated than it seems. To understand why a right to work check can show someone has the right to work but they become an illegal worker, we need to explain what legal and illegal working is. We also need to look at what the Right to Work check is and what it is intended to achieve.
So, let’s dive into this puzzling issue. We’ll break down the concepts and rules around legal and illegal working, and we’ll see how the Right to Work checks fit into the picture. By the end, you’ll have a clearer understanding of this complex topic.
Illegal Working vs Lawful Excuse
When we talk about “illegal,” we often imagine things as very clear-cut, like it’s illegal to harm another person with a weapon. But in reality, the law takes into account human behaviour to allow an approach that would take into account all the circumstances before a decision is reached.
In the above example of someone harming another person with a weapon, there might be a reason for an individual doing that particular action, i.e. they were defending themselves. In the circumstance of someone defending themselves, the law would operate differently to avoid unfairness. That’s how someone can be an illegal worker based on their actions or those of the Home Office (i.e. they cancel someone’s visa).
Now, let’s talk about legal and illegal work. At first, it might seem straightforward – legal work means having the right to work in the UK. This could be because you have the correct visa or you’re a British citizen, among other reasons. On the flip side, illegal work means someone doesn’t have the right to work in the UK. Maybe they don’t have a visa or the right kind of visa.
As stated above it’s not always so clear-cut because of how people behave.
So, to figure out if someone’s working legally in the UK, it’s best to ask these below questions during their employment.
These questions above are a starting point, but it doesn’t end there. Even if someone has the right visa, there’s more to consider.
For instance, think about a Skilled Worker. If they’re not doing the job they were sponsored for, it’s a problem. Even though they have permission to work, they’re technically working illegally because they’re not doing what they were sponsored to do.
And here’s another twist: imagine someone applied to extend their visa before it expired. Their visa might expire by the time the Home Office makes a decision. It may surprise some to learn that they can still work legally in the UK in this situation.
Now, some visas have tricky restrictions. For instance, those on seasonal worker visas are limited to jobs in agriculture. That might not be so obvious to those that do not deal with immigration day to day.
As you can see, figuring out legal and illegal work isn’t simple. It can change based on what your employees do or what the Home Office decides. If the Home Office withdraws a university’s licence, it will also cancel the students’ visas. That means they can’t work legally in the UK anymore.
What Is the UK Right to Work Checks For?
The purpose of conducting right to work checks is to verify that individuals are working within the bounds of the law in the UK. However, it’s important to note that these checks don’t provide an absolute guarantee of legal working status; instead, they aim to prevent those without the appropriate visa from working in the UK.
Apart from being a legal requirement, there’s another compelling reason to carry out these checks correctly. If you later discover that an employee has been working for you illegally, the right to work checks can serve as your legal defence, as the Right to Work checks give you a lawful excuse from hiring illegal workers (if done correctly). This means that the Home Office will refrain from pursuing civil or criminal actions against you or your business.
For instance, consider a scenario where someone is employed for 20 hours per week on a student visa, valid until 31st August 2024. If you perform the right to work check on 10th January 2023, it will confirm that they can legally work for you for 20 hours per week during term time.
However, if you subsequently learn on 22nd December 2023 that their student visa sponsorship was revoked on 10th February 2023, and the Home Office cancelled their visa on 21st March 2023, they were, in fact, working for you illegally from the 10th February 2023.
Nonetheless, because you conducted the right to work check correctly, you won’t be subjected to the £20,000 fine per illegal worker in this scenario. In this example, your lawful excuse extends until the day you were informed. If you choose to continue their employment after being informed, your lawful excuse will no longer apply, and legal action could be taken against you.
The key takeaway here is that individuals can work unlawfully in the UK, and completing the Right to Work checks doesn’t ensure that they will always work or continue to work legally in the UK.
However, these checks provide you with a lawful excuse if you unwittingly employ someone who is working illegally. Therefore, the right to work checks serve as your protection against illegal employment issues.
In summary, navigating the complexities of legal and illegal work in the UK can be perplexing. Right to work checks are a crucial aspect of compliance, although they do not offer absolute assurance.
It’s imperative to remain vigilant and pose the right questions during an employee’s tenure. These checks are not just a legal obligation; they also provide a shield against potential legal troubles.
In this ever-changing world of immigration laws, it’s beneficial to have experts on your side. WestBridge Business Immigration ensures you stay up-to-date, helping you address unexpected employment issues with confidence. Contact us today to secure your business’s future.