Right to work checks - Squaring the Circle?

Unlawful working – The basics

Employers have a duty to prevent illegal working, and it is unlawful for an employer to employ someone who does not have the appropriate right to work in the UK, including those who are working in breach of their conditions of stay.

The Immigration Act 2016 also makes it a criminal offence for an employer to knowlingly employ an illegal migrant, which includes circumstances where an employer has "reasonable cause to believe" that a person is an illegal worker. In addition to criminal sanctions, employers can be subject to a civil penalty of up to £20,000 per worker for any accidental or negligent breach.

In order for employers to comply with their duties under statute to prevent illegal working and, perhaps just as importantly, establish a "statutory excuse" against any civil penalty, the Home Office has directed that employers should:

• Carry out the 3 step "right to work" checks on all prospective employees before they commence employment:
  1. Obtain an original of one or more documents listed in the Home Office's Checklist;
  2. Check the document in the presence of the holder;
  3. Make a clear copy of the document. This copy should then be marked as a true copy of the original, clearly signed and dated, and then stored or scanned and filed securely.
• Conduct appropriate follow-up checks on employees who have a conditional or time limited right to live and work in the UK;
• Keep records of all checks carried out; and
• Ensure that it does not employ anyone it knows or has reasonable cause to believe is an illegal worker.

This is all well and good, but what problems can arise if individuals do not have the appropriate evidence of their right to work and live in the UK?  Cue:

The Windrush imbroglio 

The recent Windrush debarcle has highlighted the immense problems which can be faced by individuals who do not hold appropriate right to work documents, albeit that they are legally entitled to live and work in the UK.

Individuals who arrived in the UK between 1948 and 1971 from Commonwealth countries are collectively known as the "Windrush" generation, a reference to the ship, the Empire Windrush, which brought workers from the Carribbean Islands to the UK.

Individuals migrated to the UK in order to rebuild Britain after the Second World War by addressing the labour shortage at the time.  Many migrant children from these islands arrived in the UK under their parents' passports and therefore did not have any immigration paperwork completed for themselves.

The Immigration Act 1971 provided indefinite leave to remain ("settlement") for individuals who already had the relevant immigration paperwork and were living in the UK in 1971. After this date, a work permit and proof that a parent or grandparent was born in the UK had to be provided for a commonwealth British passport holder born overseas to settle in the UK.

So what's the issue?

Unfortunately, the Home Office when granting indefinite leave to remain to citizens under the Immigration Act 1971, did not keep a record of all the permissions granted. Further, the goverment specifically ordered the destruction of passenger landing cards in 2010, which contained the personal details and arrival dates of individuals of the Windrush generation, which arguably could have evidenced these individuals' right to work and remain in the UK.

Subsequently, thousands of individuals who migrated to the UK prior to 1971 have recently been issued letters from the Home Office threatening deportation due to their "illegal" settlement status unless they can prove they have the right to remain, despite it being the government which either failed to provide the correct paperwork or destroyed such evidence.

So not only did these individuals already face highly problematic obstacles in obtaining or, more often, changing employment (subsequent to the introduction of right to work checks in 1998) but now face the real possibility of removal from the UK. 

The UK's Prime Minister, Theresa May, has since issued an apology to Caribbean leaders for the treatment of individuals from the Windrush generation, further assurances have subsequently been given regarding existing residency rights, and future Citizenship application fees have been waived.  Most newsworthy in the saga is the demise of Amber Rudd, the previous Home Secretary, who eventualy resigned but not before having made numerous apologies to those affected. 

What about the interplay between impending General Data Protection Regulations and retention of right to work checks?

The GDPR which comes into force on 25 May 2018, will replace the Data Protection Act 1998 under UK legislation.

The GDPR creates the new right of the individual to have personal data erased under Article 17, otherwise known as "the right to be forgotten." This allows an individual to have personal data removed if, for example, the purpose for which the information was originally collected no longer exists.

In respect of right to work checks, as outlined above, these should be conducted before the individual commences any work for the employer. As this check involves retaining a paper or digital copy of the right to work documents to satisfy Home Office requirements, employers should bear in mind the balancing act of retaining copies after the purpose for which they were taken has passed i.e recruitment, against the principles of the GDPR.

In this specific instance, it is likely that employers would rely on the exception that a right to erasure would not apply where the information retained is required to satisfy a legal requirement.  In this case proving that appropriate right to work checks had been adequately conducted by the employer to prevent illegal working, and to secure a "statutory excuse" against civil penalty. The Home Office Guidance on right to work checks further requires that copies of right to work documents should be kept securely by the employer for the duration of the individual's employment and then for a further two years after that employment has ended in any event, which would further serve to justify retaining such data for this period at least.