There are draft regulations, The Immigration (Alcohol Licensing and Late Hours Catering) (Scotland) Regulations 2018, before Westminster at the moment which will bring significant change to the law relating to licensed premises, and they could be in force as early as the end of this year. Similar changes have already come into force in England and Wales and demonstrate that the Home Office have an increasing interest in establishing that licensed premises are complying with right to work laws.
The most significant changes in the Regulations are:
- All Premises and Personal licence applicants will need to provide proof of their right to live in the UK when they apply for a licence.
- All licence applications will be notified to the Home Office, and they will have a right to object if they have concerns that a premises may be a threat to immigration control. This is likely to occur where there have been previous right to work issues within the same premises or organisation.
- Licences will automatically be revoked if a holder stops having the right to live in the UK.
- Immigration Officers will have increased powers to visit premises and check employees' right to work. This will be a particular concern, as the Immigration Act 2016 gave Immigration Officers the right to force premises to close for 48 hours if they have concerns about illegal working. Businesses can also face fines of up to £20,000 if they are found to have an employee who does not have the right to work.
Although these changes will be dramatic, there are steps businesses can take now to prepare and protect themselves from any issues in the future:
1. Carry out a review of right to work policies
The first step any business should take to protect itself against these changes, and any potential right to work penalties, is to make sure they have an up to date policy to prevent illegal working. This should detail:
- When checks will be carried out;
- Who should carry the check out;
- What documents can be accepted as evidence of right to work;
- What process should be followed; and
- When follow up checks should be carried out.
The guidance relating to right to work checks is updated regularly, so it is important that a business makes sure their policy complies with the latest requirements.
2. Audit employee records
A policy will only offer protection if it is being applied universally, and the only way to make sure this is the case is to carry out an audit. This involves reviewing employee files and checking the correct documents have been stored, and correcting any issues.
This can take some time but it will be worth it, since the fine for a first offence is £15,000 per illegal worker. Each quarter the Home Office announce statistics of right to work penalties and it is not uncommon to see a single business fined in excess of £100,000 for multiple violations.
3. Provide training
It is vital that managers, and anyone involved in the hiring process, is trained on the right to work policy and fully understands how to apply it. It only takes one minor error to expose a business to risk.
4. Review contracts with any other business that will operate on site
If an Immigration Officer carries out a visit, they can ask to see evidence of the right to work of any person working on the premises, regardless of whether they work for the owner of the business or not. This means anyone who is provided by a contractor could also be checked and, if there are issues, the Home Office could close the premises for 48 hours, or use this as a basis to object to future licence applications or reviews.
With this in mind we recommend that any contacts you have with businesses who supply on site workers includes a provision that they have carried out an adequate right to work check and will provide you with a copy.
5. Remember EU staff
With Brexit fast approaching, EU staff will need to register with the Home Office to continue to be able to work in the UK after the end of the transition period (December 2020). Now is an excellent time to identify which members of staff this affects, and consider how you can make sure that they register in time and do not become illegal workers.
The changes contained in the draft regulations are daunting but if steps are taken now it is possible to protect a business from them and minimise the risk of right to work issues.
If you would like to discuss how to protect your business from right to work issues please get in touch.