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Statutory Instruments

2016 No. 1058

Immigration

The Illegal Working Compliance Orders Regulations 2016

Made

2nd November 2016

Laid before Parliament

4th November 2016

Coming into force

1st December 2016

The Secretary of State, in exercise of the powers conferred by paragraph 5(6) of Schedule 6 to the Immigration Act 2016(1), makes the following Regulations.

Citation and commencementU.K.

1.—(1) These Regulations may be cited as the Illegal Working Compliance Orders Regulations 2016.

(2) These Regulations come into force on 1st December 2016.

Commencement Information

I1Reg. 1 in force at 1.12.2016, see reg. 1(2)

InterpretationU.K.

2.  In these Regulations—

“administrative review” means review conducted under the immigration rules;

“biometric immigration document” has the same meaning as in section 5 of the UK Borders Act 2007(2);

“derivative right of residence” has the same meaning as in regulation 15A of the Immigration (European Economic Area) Regulations 2006(3);

“document” means an original document;

[F1“employee”, except in regulations 4(2), 4(3), 5A(2) and 5A(3), includes a reference to a prospective employee]

[F2“Home Office Employer Checking Service” means the enquiry and advice service for employers operated by the Home Office;]

[F3“Home Office online right to work checking service” means the electronic system allowing employers to check whether a person is allowed to work in the United Kingdom and, if so, the nature of any restrictions on that person’s right to do so.]

[F4“identity document validation technology” means technology operated by a person for the purpose of verifying the identity of another person (“the subject”), whereby a digital copy of a physical document relating to the subject is produced by or in relation to the subject for verification of—

(a)

the document’s validity, and

(b)

whether the subject is the rightful holder of the document;]

[F4“IDVT identity check” means the response generated by an IDVT identity service provider, using identity document validation technology, when undertaking identity verification with respect to a person;]

[F4“IDVT identity service provider” means a person that provides identity verification services using identity document validation technology;]

“immigration rules” has the same meaning as in section 33 of the Immigration Act 1971(4);

[F3“online right to work check” means the response generated by the Home Office online right to work checking service in relation to a person;]

“Positive Verification Notice” means a document issued by the Home Office Employer Checking Service which indicates that the person named in it is allowed to stay in the United Kingdom and is allowed to do the work in question;

“registration certificate” means a certificate issued to a national of an EEA state or Switzerland as proof of the holder’s right of residence in the United Kingdom as at the date of issue;

[F4“relevant IDVT document” means a document falling within the description in paragraph 1 or 1A of Schedule 1 and which has not expired;]

“relevant person” means a person required to comply with these Regulations by virtue of an illegal working compliance order;

“residence card” means a card issued to a person who is not a national of an EEA state or Switzerland as proof of the holder’s right of residence in the United Kingdom as at the date of issue.

Textual Amendments

F2Words in reg. 2 inserted (6.4.2022) by The Immigration (Restrictions on Employment and Residential Accommodation) (Prescribed Requirements and Codes of Practice) and Licensing Act 2003 (Personal and Premises Licences) (Forms), etc., Regulations 2022 (S.I. 2022/242), regs. 1(1)(b), 5(2)

F4Words in reg. 2 inserted (6.4.2022) by The Immigration (Restrictions on Employment and Residential Accommodation) (Prescribed Requirements and Codes of Practice) and Licensing Act 2003 (Personal and Premises Licences) (Forms), etc., Regulations 2022 (S.I. 2022/242), regs. 1(1)(b), 10(2)

Commencement Information

I2Reg. 2 in force at 1.12.2016, see reg. 1(2)

Obligation to conduct right to work checksU.K.

3.  Where an illegal working compliance order requires a person to carry out checks relating to the right to work in accordance with these Regulations, the person must comply with [F5any of regulations 4, [F64A,] 5 or 5A] in respect of each of their employees within the scope of the order.

Textual Amendments

F6Word in reg. 3 inserted (6.4.2022) by The Immigration (Restrictions on Employment and Residential Accommodation) (Prescribed Requirements and Codes of Practice) and Licensing Act 2003 (Personal and Premises Licences) (Forms), etc., Regulations 2022 (S.I. 2022/242), regs. 1(1)(b), 10(3)

Commencement Information

I3Reg. 3 in force at 1.12.2016, see reg. 1(2)

Right to work checks: prescribed documentsU.K.

4.—(1) A relevant person must—

(a)require the employee to produce to them a document or combination of documents relating to the employee described in Schedule 1 or 2; and

(b)comply with the requirements in regulation 6.

(2) Where a document or combination of documents described in Schedule 2 provides that the employment is permitted for a limited period, a relevant person is deemed to comply with this regulation for a further period if the relevant person is satisfied on reasonable grounds that—

(a)the employee has an outstanding application to vary his or her leave to enter or remain in the United Kingdom; or

(b)the employee has an appeal or administrative review pending against a decision on that application.

(3) In paragraph (2), the further period begins on the date on which the limited period expires and ends—

(a)after 28 days; or

(b)if earlier, on the date on which the Secretary of State gives the relevant person written notice that the employee does not have the right to undertake the employment in question.

Commencement Information

I4Reg. 4 in force at 1.12.2016, see reg. 1(2)

[F7Right to work checks: IDVT identity checkU.K.

4A.  A relevant person must—

(a)obtain in relation to the employee from an IDVT identity service provider an IDVT identity check which shows that there exists in relation to the employee a relevant IDVT document,

(b)receive from the IDVT identity service provider a copy of the IDVT identity check, and the document checked, in a format which cannot be subsequently altered,

(c)reasonably believe that the IDVT identity service provider has complied with the requirements set out in article 6A(1), and

(d)comply with the requirements set out in article 6A(2).]

Textual Amendments

F7Reg. 4A inserted (6.4.2022) by The Immigration (Restrictions on Employment and Residential Accommodation) (Prescribed Requirements and Codes of Practice) and Licensing Act 2003 (Personal and Premises Licences) (Forms), etc., Regulations 2022 (S.I. 2022/242), regs. 1(1)(b), 10(4)

Right to work checks: Positive Verification NoticeU.K.

5.—(1) A relevant person must—

(a)obtain a Positive Verification Notice in respect of the employee (subject to paragraph (2)); and

(b)comply, if applicable, with the requirement in regulation 6(2).

(2) A relevant person does not comply with this regulation if a period of more than six months has elapsed beginning with the date the Positive Verification Notice was obtained under paragraph (1)(a).

Commencement Information

I5Reg. 5 in force at 1.12.2016, see reg. 1(2)

[F8Right to work checks: Home Office online right to work checking serviceU.K.

5A.—(1) A relevant person must—

(a)use the Home Office online right to work checking service in respect of an employee;

(b)obtain an online right to work check confirming that the employee named in it is allowed to work in the United Kingdom and is allowed to do the work in question;

(c)be satisfied that any photograph on the online right to work check is of the employee;

(d)retain a clear copy of the online right to work check for a period of not less than two years after the employment has come to an end; and

(e)comply, if applicable, with the requirement in regulation 6(2).

(2) Where the online right to work check [F9confirms that the employee has leave to enter or remain on the date that the online right to work check is conducted] for a limited period, a relevant person is deemed to comply with this regulation for a further period if the relevant person is satisfied on reasonable grounds that—

(a)the employee has an outstanding application to vary his or her leave to enter or remain in the United Kingdom; or

(b)the employee has an appeal or administrative review pending against a decision on that application.

(3) In paragraph (2), the further period begins on the date on which the limited period expires and ends—

(a)after 28 days; or

(b)if earlier, on the date on which the Secretary of State gives the relevant person written notice that the employee does not have the right to undertake the employment in question.]

[F10(4) Paragraph (2) does not apply where the online right to work check confirms that the person had a right to work on the date of the check by virtue of a pending application, administrative review or appeal.]

Textual Amendments

Right to work checks: general requirementsU.K.

6.—(1) The requirements of this regulation are that—

(a)the relevant person takes all reasonable steps to check the validity of the document and retains a record of the date on which any check was made;

(b)a [F11clear] copy of that document or combination of documents is retained securely by the relevant person for the period during which the illegal working compliance order is in force;

(c)if a document contains a photograph purporting to be of the employee, the relevant person has satisfied himself that the photograph is of the employee;

(d)if a document contains a date of birth purporting to relate to the employee, the relevant person has satisfied himself that the date of birth is consistent with the appearance of the employee;

(e)the relevant person takes all other reasonable steps to verify that the employee is the rightful holder of the document;

(f)if the document is not a passport, the relevant person retains a [F12clear] copy of the whole of the document;

(g)if the document is a passport, the relevant person retains a [F13clear] copy of the following pages of that document—

(i)any page containing the holder’s personal details including nationality;

(ii)any page containing the holder’s photograph;

(iii)any page containing the holder’s signature;

(iv)any page containing the date of expiry; and

(v)any page containing information indicating the holder has an entitlement to enter or remain in the United Kingdom and undertake the work in question.

(2) A further requirement, if the employee is a student who has permission to work for a limited number of hours per week during term time whilst studying in the United Kingdom, is that the relevant person must—

(a)require the employee to provide details of the term and vacation dates of the course that the employee is undertaking; and

(b)retain a record of these details.

Textual Amendments

Commencement Information

I6Reg. 6 in force at 1.12.2016, see reg. 1(2)

[F14Right to work checks: IDVT identity checks—requirementsU.K.

6A.—(1) The requirements mentioned in article 4A(c) are, in relation to a relevant IDVT document produced for the purposes of an IDVT identity check in pursuance of article 4A(a), that—

(a)the IDVT identity service provider takes all reasonable steps to check the validity of the document;

(b)the IDVT identity service provider records in a format that cannot be subsequently altered the date on which the check was carried out;

(c)the IDVT identity service provider is satisfied that the photograph is of the employee;

(d)the IDVT identity service provider is satisfied that the date of birth is consistent with the appearance of the employee;

(e)the IDVT identity service provider takes all reasonable steps to verify that the employee is the rightful holder of the document;

(f)where the document is a passport which is not in the form of a card, the IDVT identity service provider retains a clear copy of the following pages of that document in a format which cannot be subsequently altered—

(i)any page containing the holder’s personal details including nationality;

(ii)any page containing the holder’s photograph;

(iii)any page containing the date of expiry;

(g)where the document is a travel document in the form of a card, the IDVT identity service provider retains a clear copy of the whole of that document in a format which cannot be subsequently altered.

(2) The requirements mentioned in article 4A(d) are that—

(a)the relevant person is satisfied that the photograph of the individual contained in the information received by the relevant person in accordance with article 4A(b) is of the employee;

(b)the relevant person retains a clear copy of the IDVT identity check, and the documents checked, for a period of not less than two years after the employment has come to an end.]

Textual Amendments

F14Reg. 6A inserted (6.4.2022) by The Immigration (Restrictions on Employment and Residential Accommodation) (Prescribed Requirements and Codes of Practice) and Licensing Act 2003 (Personal and Premises Licences) (Forms), etc., Regulations 2022 (S.I. 2022/242), regs. 1(1)(b), 10(5)

Obligation to produce documents to an immigration officerU.K.

7.  Where an illegal working compliance order requires a person to produce documents relating to the right to work to an immigration officer in accordance with these Regulations, the person must comply with [F15any of regulations 8, 9 [F16, 9A or 9B]] in respect each of their employees within the scope of the order.

Textual Amendments

Commencement Information

I7Reg. 7 in force at 1.12.2016, see reg. 1(2)

Documents to be produced to an immigration officer: generalU.K.

8.—(1) A relevant person must produce—

(a)a [F17clear] copy of a document or a [F17clear] copy of a combination of documents relating to the employee described in Schedule 1 or 2 in accordance with paragraphs (2) and (3); and

(b)if the employee is a student who has permission to work for a limited number of hours per week during term time whilst studying in the United Kingdom, a document or [F17clear] copy of a document which records the details of the term and vacation dates of the course that the employee is undertaking.

(2) In respect of a passport, the relevant person must produce a [F17clear] copy of the following pages of that document—

(a)any page containing the holder’s personal details including nationality;

(b)any page containing the holder’s photograph;

(c)any page containing the holder’s signature;

(d)any page containing the date of expiry; and

(e)any page containing information indicating the holder has an entitlement to enter or remain in the United Kingdom and undertake the work in question.

(3) In respect of a document which is not a passport, the relevant person must produce a [F17clear] copy of the whole of the document.

Textual Amendments

Commencement Information

I8Reg. 8 in force at 1.12.2016, see reg. 1(2)

Documents to be produced to an immigration officer: Positive Verification NoticeU.K.

9.  A relevant person must produce—

(a)a Positive Verification Notice which has been obtained in respect of the employee within the preceding period of six months from the date on which it is produced to an immigration officer; and

(b)if the employee is a student who has permission to work for a limited number of hours per week during term time whilst studying in the United Kingdom, a document or copy of a document which records the details of the term and vacation dates of the course that the employee is undertaking.

Commencement Information

I9Reg. 9 in force at 1.12.2016, see reg. 1(2)

[F18Documents to be produced to an immigration officer: Home Office online right to work checking serviceU.K.

9A.  A relevant person must produce—

(a)a clear copy of the online right to work check; and

(b)if the employee is a student who has permission to work for a limited number of hours per week during term time whilst studying in the United Kingdom, a document or clear copy of a document which records the details of the term and vacation dates of the course that the employee is undertaking.]

Textual Amendments

[F19Documents to be produced to an immigration officer: IDVT identity checkU.K.

9B.  A relevant person must produce a clear copy of the IDVT identity check and the document checked.]

Textual Amendments

Restriction on retention of documentsU.K.

10.  Nothing in these Regulations permits a relevant person to retain documents produced by an employee [F20or the Home Office] for the purposes of these Regulations for any period longer than is necessary for the purposes of ensuring compliance with regulation [F216, 8, 9 [F22, 9A or 9B]].

Textual Amendments

Commencement Information

I10Reg. 10 in force at 1.12.2016, see reg. 1(2)

Robert Goodwill

Minister of State

Home Office

Regulations 4 and 8

SCHEDULE 1U.K.

1.  An expired or current passport showing that the holder F23... is a British citizen or a citizen of the United Kingdom and Colonies having the right of abode in the United Kingdom.U.K.

Textual Amendments

Commencement Information

I11Sch. 1 para. 1 in force at 1.12.2016, see reg. 1(2)

[F241A.  A passport or passport card (in either case, whether current or expired) showing that the holder is an Irish citizen.]U.K.

Textual Amendments

F251B.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

[F261C.  A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted unlimited leave to enter or remain under Appendix EU(J) to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules (as the case may be).]U.K.

Textual Amendments

F272.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F273.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F274.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F285.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

6.  A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the United Kingdom, has the right of abode in the United Kingdom, or has no time limit on their stay in the United Kingdom.U.K.

Commencement Information

I12Sch. 1 para. 6 in force at 1.12.2016, see reg. 1(2)

7.  A current immigration status document issued by the Home Office to the holder with an endorsement indicating that the person named in it is allowed to stay indefinitely in the United Kingdom or has no time limit on their stay in the United Kingdom, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.U.K.

Commencement Information

I13Sch. 1 para. 7 in force at 1.12.2016, see reg. 1(2)

8.  A F29... birth certificate issued in the United Kingdom F29..., when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.U.K.

Textual Amendments

Commencement Information

I14Sch. 1 para. 8 in force at 1.12.2016, see reg. 1(2)

9.  [F30An] adoption certificate issued in the United Kingdom F31... when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.

Textual Amendments

Commencement Information

I15Sch. 1 para. 9 in force at 1.12.2016, see reg. 1(2)

10.  A birth certificate issued in the Channel Islands, the Isle of Man or Ireland, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.U.K.

Commencement Information

I16Sch. 1 para. 10 in force at 1.12.2016, see reg. 1(2)

11.  An adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.U.K.

Commencement Information

I17Sch. 1 para. 11 in force at 1.12.2016, see reg. 1(2)

12.  A certificate of registration or naturalisation as a British citizen, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.U.K.

Commencement Information

I18Sch. 1 para. 12 in force at 1.12.2016, see reg. 1(2)

Regulations 4 and 8

SCHEDULE 2U.K.

1.  A current passport endorsed to show that the holder is allowed to stay in the United Kingdom and is allowed to do the work in question.U.K.

Commencement Information

I19Sch. 2 para. 1 in force at 1.12.2016, see reg. 1(2)

F322.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F333.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F343A.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

[F353B.  A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted limited leave to enter or remain under Appendix EU(J) to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules (as the case may be).]U.K.

Textual Amendments

F363C.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F373D.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

4.  A current immigration status document containing a photograph issued by the Home Office to the holder with an endorsement indicating that the person named in it is allowed to stay in the United Kingdom and is allowed to do the work in question, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or previous employer.U.K.

Commencement Information

I20Sch. 2 para. 4 in force at 1.12.2016, see reg. 1(2)

EXPLANATORY NOTE

(This note is not part of the Regulations)

Paragraph 5 of Schedule 6 to the Immigration Act 2016 empowers a court to make an illegal working compliance order to prevent an employer from employing an illegal worker. These Regulations prescribe the checks relating to the right to work which a court may require a person specified in an illegal working compliance order to carry out. These Regulations also prescribe the documents relating to the right to work which a court may require a person specified in an illegal working compliance order to produce to an immigration officer.

A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen.

(3)

S.I. 2006/1003. Regulation 15A was inserted by S.I. 2012/1547 and was amended by S.I. 2012/2560, S.I. 2013/3032 and S.I. 2015/694.