The Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018

Amendments to the Immigration (Restrictions on Employment) Order 2007

2.—(1) The Immigration (Restrictions on Employment) Order 2007(1) is amended as follows.

(2) In article 2 (interpretation), after the definition of “document”, insert—

““employee”, except in articles 4(3) and 4B(3), includes a reference to a prospective employee;”.

(3) In article 3 (excusal from paying civil penalty: right to work without time limit)—

(a) in paragraph (1), for “To the extent provided for by paragraph (2)” substitute “Subject to article 5,”;

(b) in paragraph (1)(a), omit “or prospective employee”;

(c) omit paragraph (2).

(4) In article 4 (excusal from paying civil penalty: time-limited right to work)—

(a) in paragraph (1)(a), omit “or prospective employee”;

(b) in paragraph (3), after “appeal” insert “or administrative review”.

(5) In article 4A (excusal from paying civil penalty: Positive Verification Notices), in paragraph (1)(a)(i), omit “or prospective employee”.

(6) After article 4A insert—

“Excusal from paying civil penalty: Home Office online right to work checking service

4B.— (1) To the extent provided for by paragraphs (2) and (3), an employer is excused from paying a penalty under section 15 of the 2006 Act(2) if—

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

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

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

(d) the employer retains 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) the employer complies, if applicable, with the requirement in article 6(2).

(2) Subject to article 5, an employer will be excused under this article from paying a penalty under section 15 of the 2006 Act for the period for which the online right to work check confirmed that the person named in it was permitted to carry out the work in question.

(3) If, on the date on which the period specified in paragraph (2) expires, the employer is reasonably satisfied that the employee has an outstanding application to vary his leave to enter or remain in the United Kingdom or the employee has an appeal or administrative review pending against a decision on that application, the employer will be excused from paying that penalty for a further period beginning with the date on which the period specified in paragraph (2) expires and ending—

(a) after 28 days, or

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

(4) In this article—

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

“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.”

(7) In article 5 (condition for excusal to apply)—

(a) for “article 3(2)(b)”, substitute “article 3(1)”;

(b) for “or article 4A(2)”, substitute “, article 4A(2) or article 4B(2)”;

(c) after “to the employer”, insert “, or the employer obtains an online right to work check which confirms that the employee named in it is allowed to work in the United Kingdom and is allowed to do the work in question,”.

(8) In article 6 (requirements in relation to documents)—

(a) in paragraph (1)—

(i) in sub-paragraphs (b), (f) and (g), insert “clear” immediately before “copy”;

(ii) in sub-paragraphs (c), (d) and (e), omit “prospective employee or”;

(b) in paragraph (2) omit “or prospective employee” in both places where it appears.

(9) In article 7 (restriction on retention of documents)—

(a) after “employee”, insert “or the Home Office”;

(b) for “4 or 4A”, substitute “4, 4A or 4B”.

(10) In the Schedule (lists of acceptable documents), in List A—

(a) in paragraph 8, omit “full” and “which includes the name(s) of at least one of the holder’s parents”;

(b) in paragraph 9—

(i) for “A full” substitute “An”;

(ii) omit “which includes the name(s) of at least one of the holder’s adoptive parents”.

(11) In the Schedule (lists of acceptable documents), in Part 2 of List B, in paragraph 1, for “regulation 17(3) or 18A(2) of the Immigration (European Economic Area) Regulations 2006” substitute “regulation 18(3) or 20(2) of the Immigration (European Economic Area) Regulations 2016(3)”.

(1)

S.I. 2007/3290, amended by S.I. 2009/2908 and S.I. 2014/1183; there are other amending instruments but none is relevant.

(2)

Section 15 was amended by paragraph 61 of Schedule 9 to the Immigration Act 2014 (c. 22).

(3)

S.I. 2016/1052, as amended by S.I. 2017/1; there are other amending instruments but none is relevant.