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Preventing Illegal Working

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Disability Rights UK Factsheet F16

This factsheet covers your responsibility to prevent illegal working of your personal care workers.

Overview

There is a legal obligation on everyone to ensure that their employee/s have right to work in this country. This duty of extends to disabled people (whether you are a self-funder or personal budgets holder) who employ their own PAs. As an employer, you are under a legal obligation not to employ anyone who does not have right to live and work in the UK. Failure in doing so has civil and criminal implications. As explained in this fact sheet. Preventing illegal working imposes a duty to carry out by way of appropriate checks by every employer to ensure employees have the right to work in the UK. The notes below highlights legal responsibilities and sanctions that may be imposed on employers under the Immigration Act 2016.

A Compliant Environment: Number of Measures adopted by the Government 

DRUK & Skills for Care support disabled individuals to understand their responsibilities when employing personal assistants. The Government has passed several rules that create a hostile environment for illegal immigrant to live and work in the UK. Some of the measures can be summarised as given below:

  • You can both face civil and criminal case if found to be employing an illegal PA.
  • You do not have rights to host you’re your illegal employee not can you rent your place to him. The Government has significantly restricted right to rent in cases of people living illegally.
  • The access to NHS medical treatment is restricted as there is a process of data sharing between NHS & the Home Office.

Verifying eligibility to work in the UK:

Every person who has been offered employment will need to be checked to ensure they are eligible to work in the UK before they are allowed to start work. These checks should be carried out for all employees who have been given a conditional offer of employment to ensure individuals are not being unlawfully discriminated against because of their nationality at any stage of the recruitment and selection process.

If the individual fails to provide the necessary documentation to demonstrate that they have the right to work in the UK, they must not be allowed to start work. If an employee attends for work without these checks having been done they must be sent home and must not be allowed to start work, unless before they start work they are able to provide the necessary documentation.

An employee can keep working after their visa expires if they produce certain documents to confirm that they made an application for a new or renewed visa in time (i.e., before visa expiry). The ‘statutory excuse’ (i.e., employer’s defence against illegal working) is extended for a maximum of 28 days beyond the expiry date where the employer is reasonably satisfied11 that an employee has submitted an application or has an appeal or administrative review3 pending against a decision on an application. However, to benefit from this, employer must make an Employer Checking Service (ECS) check within 28 days of visa expiry. If a Positive Verification Notice10 is received, the employer will have a statutory excuse for a further six months from the check. It is important that an employee provides evidence that they have submitted their application (e.g., proof of postage, and an acknowledgement letter from the Home Office or Home Office reference number if available etc.) either before or on the date of visa expiry.

What documents do you need to check to ensure that your PA has the right to work in this country?

There are two list of documents that you need to check before employing your PA. They are as follows:

Acceptable documents to establish a continuous statutory excuse

List 1

  1. A passport showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.

  2. A passport or national identity card showing the holder, or a person named in the passport as the child of the holder, is a national of a European Economic Area country or Switzerland.

  3. A Registration Certificate or Document Certifying Permanent Residence issued by the UKVI to a national of a European Economic Area country or Switzerland.

  4. A Permanent Residence Card issued by the UKVI to the family member of a national of a European Economic Area country or Switzerland.

  5. current Biometric Immigration Document (Biometric Residence Permit) issued by the UKVI to the holder indicating that the person named is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK.

  6. 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.

  7. current Immigration Status Document issued by the UKVI 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 in the UK, 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.

  8. full birth or adoption certificate issued in the UK which includes the name(s) of at least one of the holder’s parents or adoptive parents, 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.

  9. A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, 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.

  10. A certificate of registration or naturalisation as a British citizen, 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.

List 2

Group 1 – Documents where a time-limited statutory excuse lasts until the expiry date of leave

  1. current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question.

  2. current Biometric Immigration Document (Biometric Residence Permit) issued by the UKVI to the holder which indicates that the named person can currently stay in the UK and is allowed to do the work in question.

  3. current Residence Card (including an Accession Residence Card or a Derivative Residence Card) issued by the UKVI to a non-European Economic Area national who is a family member of a national of a European Economic Area country or Switzerland or who has a derivative right of residence.

  4. current Immigration Status Document containing a photograph issued by the UKVI to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, 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.

Group 2 – Documents where a time-limited statutory excuse lasts for 6 months

  1. A Certificate of Application issued by the UKVI under regulation 17(3) or 18A (2) of the Immigration (European Economic Area) Regulations 2006, to a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old together with a Positive Verification Notice from the UKVI Employer Checking Service.

  2. An Application Registration Card issued by the UKVI stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the UKVI Employer Checking Service.

  3. Positive Verification Notice issued by the UKVI Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question.

What steps has the Government taken to deal with the issue of illegal working?

The Government is devised a more efficient method of liaising with other Government in ensuring that the those who do not have right to live or work in this country are not in a position to avail of various benefits like NHS medical treatment, baking facilities and housing facilities. There are now very strict compliance requirements put in place.

What are some of the compliance requirements that have been devised to prevent illegal working in the UK?

  • The Department of Works & Pensions will immediately terminate any benefit that has been granted to a person who does not right of abode in the UK.
  • The National Health Service will not provide any medical facilities to anyone living without a valid visa or whose right to entry into the UK has been curtailed.
  • HMRC will stop any credit from being granted to someone who does not have right to live in the UK.
  • The private sector cannot hire, engage or employ anyone who is illegally staying in the UK.
  • There will be restrictions put in place preventing private landlords from renting out their facilities to illegal people.

In terms of deterrence, the Government has proposed the following guidelines:

  • Training documentation and licences requirement for work shall not be granted.
  • People staying illegally in this country cannot get access to financial or banking services. This also includes financial products.
  • There will be restriction on the DVLA from issuing driving licence to people living illegally in this country.
  • Local authorities’ services will be denied to anyone living illegally in this country.

Where can I get more help or information?

You can contact our personal budgets helpline and email service - Telephone: 0330 995 0404

Opening hours: 9.30am -1.30pm on Tuesdays and Thursdays

Email: personalbudgets@disabilityrightsuk.org

The Personal budgets helpline telephone and email service at Disability Rights UK is an advice service that is open for individuals and organizations to provide information on Personal budgets as part of the Personalisation agenda. The Advisor on the helpline will explain to you the concept of personal budgets in relation to the care and support services and how to access social care funding in the light of the Care Act.

This line gives information on the national eligibility criteria for social care funding, care needs assessments and care and support planning as well as the national eligibility criteria and non-residential community care charges.

The line also offers advice on managing self-operated care packages (such as opening a separate bank account and keeping a record of how the budget is spent), including general advice to potential users of direct payments and self-funders on the responsibilities and legal requirements involved in employing staff/personal assistants who support you in everyday life.

We don’t advise on social security benefits, equipment/aids and discrimination related issues.

This factsheet is a basic overview. We have other publications concerned with independent living in our shop at https://www.disabilityrightsuk.org/shop

You can also place orders by contacting Disability Rights UK.

All our factsheets are free to download on our website at disabilityrightsuk.org. We have a number of independent living factsheets.

12 March 2018

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