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People manager’s guide (and store managers in Express) to managing right to work in the UK April 2016

..................................................................................................................................................... 2 .............................................................................................................................................. 2 .......................................................................................................... 2 ....................................................................................................... 2 ......................................... 2 .................................................................................................... 3 ......................................... 4 .............. 4 ................................................................................................................................................. 5 1.

International students ..................................................................................................................... 5

2.

Tier 2 ................................................................................................................................................. 5 ................................................................................................................ 6 .................................................................................................................... 6 ..................................................................... 6 ..................................................................................... 6

The Points Based System (PBS) ......................................................................................................... 7 UK Ancestry ............................................................................................................................................. 9 Dependant of an EEA or Swiss national or any of the above .......................................................... 9 Asylum/Refugee/Humanitarian protection .......................................................................................... 9 Family visa ............................................................................................................................................... 9 Discretionary Leave to Remain............................................................................................................. 9 Business Visitors ..................................................................................................................................... 9 Internal, People manager’s guide to managing right to work in the UK Page 1 of 10 April 2016

The law on preventing illegal working places a huge responsibility on employers, and is complex and timeconsuming. It changes frequently to reflect political changes and technological advances, and it is hard to keep abreast of the requirements, and to have the necessary in-depth knowledge to manage individual colleagues’ circumstances. This is why we have automated and centralised as much as possible. However, we still need People Managers to stand over the process for their area and to be tenacious in chasing and solving outstanding right to work problems. The various parts of the Home Office which we have contact with (UK Visa & Immigration, UK Enforcement, Civil Penalties Unit) expect us to meet the highest standards of compliance with the law, and so it is essential that your management of right to work is at the centre of your housekeeping routines. There are stiff penalties for non-compliance – fines of up to £20,000 per illegal colleague, downgrading of our Sponsor License which allows us to bring in colleagues from outside Europe, as well as reputational damage to the company. This guide outlines what is expected of you, and also gives some useful background information. If you are in any doubt as to what action to take, or what process to follow, please contact the central Employment Compliance team at: [email protected]

You must ensure that all managers involved in recruitment are aware of their responsibility to check the original right to work documents of each candidate, are familiar with the different documents and what they need to check, and complete a manager’s declaration every time they interview a candidate.

Stores, distribution and customer fulfilment centres: You must authorise all invitations to interview, and only after you have received a report from Keesing (the external company we use to verify right to work) showing that the candidate has passed the right to work check. The candidate must be told to bring their original documents with them to interview. Office: Functional Resourcing Managers will invite candidates to an interview and will instruct them to bring their original right to work documents with them (directly or via an Agency).

You are responsible for ensuring the correct right to work documentation is filed on every colleague’s personnel file. The actual documents that need to be kept as a minimum will depend on the colleague’s start date with the company, and are described below: Stores, distribution and customer fulfilment centres (CFCs): All successful candidates recruited on or after 11th November 2015 should have a positive Keesing right to work report signed by the interviewing manager, on their personnel file. Copies of the actual right to work documents do not need to be held on file as these are held centrally by the Employment Compliance team. Colleagues recruited from 24th February 2014 (large stores, CFCs and distribution) or 18th August 2014 (convenience) until 11th November 2015 should have photocopies of their current (and any previous) right to work, a signed declaration form filled in by the interviewing manager, and a confirmation from the central Employment Compliance team that the person has the right to work. Internal, People manager’s guide to managing right to work in the UK Page 2 of 10 April 2016

Colleagues recruited from 29th February 2008 until 24th February 2014 (large stores, CFCs and distribution) or 18th August 2014 (convenience) should have photocopies of their current (and any previous) right to work which have been signed and dated by the manager who checked the original documents. Colleagues recruited from 1st May 2004 until 28th February 2008 should have photocopies of the right to work documents that they were required to present at the point of recruitment (please see Appendix 2). Colleagues recruited before 1st May 2004 needed to show a permanent national insurance number at the point of recruitment, and there should be a copy on their personnel file. However, this was not clear in our guidance at the time so most people will not have the evidence on file and is not possible to gain it retrospectively. Colleagues recruited before January 1996 did not have to show any evidence of their right to work, so these colleagues will not have any documentation on file. Office including Customer Engagement Centre Colleagues recruited from 4th April 2016 should have photocopies of their current right to work, and a signed declaration form filled in by the interviewing manager. Colleagues recruited from 29th February 2008 until 4th April 2016 should have photocopies of their current (and any previous) right to work which have been signed and dated by the manager who checked the original documents. Colleagues recruited from 1st May 2004 until 28th February 2008 should have photocopies of the right to work documents that they were required to present at the point of recruitment (please see Appendix 2). Colleagues recruited before 1st May 2004 needed to show a permanent national insurance number at the point of recruitment, and there should be a copy on their personnel file. However, this was not clear in our guidance at the time so most people will not have the evidence on file and is not possible to gain it retrospectively. Colleagues recruited before January 1996 did not have to show any evidence of their right to work, so these colleagues will not have any documentation on file. Colleagues employed before 29th February 2008 There is no requirement to re-check documentation for anyone employed before 29th February 2008 even if they had limited leave to remain, or if their right to work appears to have expired. The only exception is if they had restrictions on their employment (for example, an international student) – we must continue to manage them as an international student with restrictions on their working hours unless they bring in new documents showing that they no longer have a restriction. This means they must not work more than 20 hours per week in any week as they cannot prove they are not in term-time as they are unlikely to still be a student. If someone allows their permission to live and work in the UK to lapse, the Home Office will follow-up and could arrest/deport the colleague – sometimes by appearing at their work location. Providing we are able to prove that we made the relevant checks before their employment began, we will not be prosecuted.

HRAM/Our Personnel System: The system should reflect the correct immigration status for each colleague, including visa details if applicable. These should be updated as appropriate for colleagues with limited leave to remain. ETHAF/WFC: These systems do not hold immigration details so a manual paper-based system has to be used instead. Any management colleague in shops and any colleague in our distribution centres with limited leave to remain should have their details entered on to the ‘Colleagues with limited leave to remain Tracker’. The Tracker should be reviewed regularly to ensure we ask for new right to work documents well before their current right to work expires. Please click here to find a copy of a blank Tracker.

Internal, People manager’s guide to managing right to work in the UK Page 3 of 10 April 2016

Issue all new colleagues with limited leave to remain with a letter which describes their responsibilities to Tesco regarding their immigration status, throughout their employment. Please click here for a copy of the letter. The letter also asks the colleague to give their permission for Tesco to conduct any right to work status checks as we deem necessary. A signed copy should be placed on their personnel file.

Make sure you know which of your colleagues have limited leave to remain, and regularly review when their current right to work in the UK expires. If you are in stores or in the office you can print a report from the HRAM or OPS system to help you. If you are in distribution or have colleagues on ETHAF you should review your manual Tracker monthly as a minimum. At least one month before your colleague’s permission expires, meet with them and ask them to obtain new documents. Please click here for a copy of the template invitation letters. The central Employment Compliance team may remind you and the colleague of this if they are tracking your colleague, but are unable to help you if they don’t have your colleague’s details. Following your meeting with the colleague, there will be one of the following outcomes: a.

New documents presented

If the colleague presents new permission documents before their current permission expires, you should complete a Manager’s Declaration Form (please click here for a form), and carry out the necessary document checks detailed on the form. Stores, distribution, and customer fulfilment centres: scan all of these documents to the central Employment Compliance team and send them an email to tell them what you have done. They will then check their authenticity and obtain a Positive Verification Notice if necessary. Once they have verified the documents, print off and file the new Keesing right to work report on the colleague’s file. Office including customer engagement centre: File a copy of the documents on the colleague’s personnel file along with your signed Manager’s Declaration form. If you need a Positive Verification Notice you can ask the central Employment Compliance team to do this for you by emailing: [email protected] b.

No new documents but evidence that colleague has applied for new permission

As long as the colleague can provide evidence that they have applied for new right to work before their current permission expires, their right to work is automatically extended for a maximum of 28 days. The colleague must provide a copy of their application form along with proof of postage, or screen shots of their online application. Alternatively they can supply a letter from UK Visas and Immigration confirming their application has been received. Please note that if a colleague has applied online on or before the expiry date, they have a further 15 days to send supporting documents by post. A colleague therefore has up to 15 days after visa expiry to provide you with proof of postage. A solicitor’s letter is not sufficient evidence that an application has been made. Scan these documents to the central Employment Compliance team who will carry out a check with the Employer Checking Service. Please email: [email protected]. Once they have received a Positive Verification Notice (PVN) which normally takes between 5-7 days, you should print and file this in the colleague’s personnel file. This PVN covers the company for six months from the date of the check. However, the colleague should still bring in their new right to work documents as soon as they receive them. You can then complete a Manager’s Declaration form, carry out the necessary checks as before, and then scan the documents to the central Employment Compliance team.

If new documents have not been provided within six months and the Positive Verification Notice (PVN) is due to expire: You should ask the colleague for their documents and if they cannot provide them you should ask the central Employment Compliance team to carry out another check with the Employer Checking Service to verify if the Internal, People manager’s guide to managing right to work in the UK Page 4 of 10 April 2016

colleague can continue to work. If they receive another Positive Verification Notice this should be placed on the colleague’s file. This PVN will cover the colleague for a further six months. c. No new documents/evidence that the colleague has applied for new permission, or a Negative Verification Notice The colleague must be suspended with no pay on the date their documents expire, or the date we receive a Negative Verification Notice, as they can no longer legally earn pay through the company. (Stores should code this as planned unpaid UA600.). If possible, please take a copy of any payroll evidence that the colleague is not being paid as it could be needed in the event of a challenge from the Home Office. In stores, evidence could be in the form of a photocopy of the relevant data on the condensed listing report. You should then invite them to an investigatory hearing as soon as possible - it must be within 7 days. If you have not already done so, you should ask the Employment Compliance team to carry out a check with the Employer Checking Service to see if the colleague has applied for further leave to remain and work in the UK. Assuming the check confirms that the colleague has no further leave to remain, it is likely that the colleague will be dismissed for failure to provide sufficient evidence of their right to work in the UK. Please note that although we must ensure we are following a fair process, there should be no unnecessary delays, as we can still be fined by UK Enforcement for employing someone with no right to work even if they are no longer being paid. Please click here to find a checklist to help you manage this correctly. Employer Checking Service Responses The central Employment Compliance team will contact the Home Office Employer Checking Service (ECS) to verify: -

An Application Registration Card or a Certificate of Application. If a colleague has a genuine application for further leave to remain in the UK in their system which allows the colleague to continue to work even though their current permission has expired.

There are four types of response that we will get from the Employer Checking Service: 1. 2. 3.

4.

Positive Verification Notice (PVN): This confirms that the colleague has a current application in the system which allows them to work for six months. Negative Notice: This confirms that the colleague has no valid application in the system which allows them to work. Neutral Response: The colleague no longer has an application in the system, so the colleague will have heard back from the Home Office. They should therefore be able to bring in new documents or confirm that their application has been unsuccessful and they no longer have permission to work. No statutory excuse: Used rarely and for a variety of circumstances. You must discuss this further with the central Employment Compliance team in order to decide on what course of action is appropriate.

Generally the only visas that have restrictions on employment that affect Tesco are Tier 4 international students, and colleagues on a Tier 2 visa. 1.

International students

In stores, the HRAM, clocking, and payroll systems prevent an international student from being paid for hours beyond their restriction (either 10 or 20 hours as detailed on their visa). Hence, if managers allow colleagues to work, they will not be paid. Both managers and international students are subject to the disciplinary process if they breach their restriction. In other parts of the company it is rare for us to employ an international student. There are no system controls in WFC or OPS so it is important that line managers are vigilant in managing their students’ hours so that they do not breach their visa restrictions. 2.

Tier 2

Colleagues employed on a Tier 2 visa must work exactly in accordance with the job title, location, and hours stipulated on their visa. Any change could result in a fine to the company. Therefore, before changing any terms Internal, People manager’s guide to managing right to work in the UK Page 5 of 10 April 2016

and conditions of employment for these colleagues, you must check with the central office contact (detailed below) to see if it is an allowed change under their visa restrictions. There are strict regulations for managing and tracking Tier 2 colleagues and so the central team oversees their employment and visa status. Please contact the following contacts to discuss any Tier 2 issues: -

Global Mobility team: Please email: [email protected] Pharmacy and Optical Support team: Please email: [email protected] and click here for the guide: ‘Managing Tier 2 Pharmacists and Opticians’.

You must make sure you know which of your colleagues with limited leave to remain have restrictions, and then: -

Talk to their manager to ensure they are aware of what working restrictions apply to the colleague and the consequences of working in breach of them; Talk to the colleague to ensure they are aware of the restrictions that apply to them and the consequences of working in breach of them; Regularly review (at least once a month) the colleague’s contracted hours, job role, and job location to ensure their working practices are in line with their visa conditions; Take action with both the colleague and their manager if they have worked in breach of their restrictions.

Stores, distribution and customer fulfilment centres: The central Employment Compliance team issue a People and Payroll audit which you need to complete every quarter. Results from the audit are RAG’d (Red, Amber, Green), collated centrally, and those graded Red are escalated to the Group/Regional team who will investigate and take action as necessary. There is also a process for monitoring any international student visa breaches. Any breaches will result in the store being notified along with the Group People Manager, and you will be asked to investigate why the breach happened and take appropriate action with the student and line manager (as a guideline this may be a final written warning for a first offence). Office including Customer Engagement Centre: There is no central auditing or tracking process, so People Managers are accountable for ensuring their area is compliant: a. b. c.

Checking every personnel file has the correct documentation; Checking anyone with limited leave to remain is employed within their restrictions e.g. Tier 2 or international students; Ensuring all colleagues with limited leave to remain are not employed past their visa expiry date.

Approval is required by any person from a country outside of the European Economic Area and Switzerland who doesn’t possess one of the documents described in lists 1 and 2 (please see the main right to work policy for these lists). A person is granted approval to work in the UK via the Points Based System (PBS). Once someone gains approval through the PBS or through one of the other defined routes, they will be able to provide documents from list 3. Generally, once someone has lived and worked legally within the UK for a continuous period of 5 years they can apply for Indefinite Leave to Remain and there will be no restrictions on the work they do or time limits on their stay. After having had Indefinite Leave to Remain status for at least one year, a person may apply for UK citizenship (also called ‘naturalisation’).

There are five routes under the Points Based System, and five alternative routes that we are most likely to see in Tesco. Internal, People manager’s guide to managing right to work in the UK Page 6 of 10 April 2016

The Points Based System (PBS) Tier 1: Highly Skilled Migrants Tier 1 is for highly skilled individuals who want to work in the UK, and they do not need a specific job offer before they can apply. Under Tier 1, the applicant is responsible for their own application – Tesco does not apply on their behalf. People may apply from their home country, or, if already in the UK on a different type of approval, they can apply and transfer onto Tier 1. Applicants must have a degree and score a minimum number of points across a range of different factors (English language capability, previous earnings, savings, and age). Applicants to Tesco may have Tier 1 (General) permission, Tier 1 (Post Study) permission – for people who have recently obtained their degree at a UK educational institution, or Tier 1 Graduate Entrepreneur. Once someone has been given Tier 1 approval they may work for any employer in any position – there is no restriction on the type of work they can do for (NB: except for Graduate Entrepreneurs – see paragraph below). Approval is transferable between employers, and initial approval is granted for two or three years, after which the person can apply for an extension for a further two or three years. In the last few years, the Government has put a very restrictive cap on the number of people who can come to the UK (or stay in the UK) through Tier 1. Tier 1 Entrepreneurs Entrepreneurs cannot work for an employer so we must not employ them. Graduate Entrepreneurs can be employed but are restricted to 20 hours work per week. Tier 2: Skilled workers with a job offer This category of visa is used by the company to enable skilled people who are not European Economic Area or Swiss nationals to work for us in this country. In Tesco we mainly use this route into the UK for intra-company transfers – colleagues who work for Tesco in another part of the world, and who transfer into the UK to work on a short-term project. Examples would be colleagues transferring from our People Operations centre in Bengaluru. Under Tier 2 Tesco sponsors the applicant. The migrant cannot apply for Tier 2 permission without a Certificate of Sponsorship from us. The applicant has to apply for the actual Tier 2 permission using the Certificate of Sponsorship number that Tesco has supplied. A Certificate of Sponsorship cannot be transferred between employers and can only be issued for a specific skilled job. The permission usually lasts between 6 months and 5 years. In Tesco there are very few jobs which qualify for Tier 2 permission, as the job has to require unique skills which are difficult to find from within the European Economic Area, and we are required to supply evidence of this, by showing that we have advertised the job via Jobcentre Plus and via one other method of relevant advertising (except for jobs on the ‘Shortage Occupation’ list). In stores, we employ some pharmacists and opticians on a Tier 2 visa. In distribution it is unlikely that we would employ anyone as the jobs would not qualify for Tier 2 status. In the office there are a few skilled jobs that may qualify, particularly in Finance, IT and Commercial buying. Tesco had to apply to become a recognised sponsor on the register of sponsors, and to maintain our sponsor rating of ‘A’ we have to comply with a range of tracking and reporting responsibilities. For this reason, all certificates of sponsorship are administered centrally. There is a fee for each certificate of sponsorship which is paid by the area requesting the certificate. All Tier 2 workers who apply to extend their stay in the UK are required to obtain a Biometric Residence Permit or BRP. This is the only document that needs to be produced to prove entitlement to work. Tier 3: Low skilled workers – currently suspended and it is unclear when it will be implemented. Tier 4: International students Tier 4 covers non-EEA/Switzerland nationals who are international students studying at a UK university or educational establishment. The educational body acts as the sponsor for the student. A student must not fill a Internal, People manager’s guide to managing right to work in the UK Page 7 of 10 April 2016

permanent full-time vacancy. Some students may not work at all, and others may only work a maximum of 10 or 20 hours a week during term time. The cap on working hours does not apply during the holidays, so students may work full-time during these periods. 10 hours per week if: - their visa (leave to remain/enter in the UK) was issued on or after 3rd March 2010 - they are studying for a qualification below degree level (except for foundation degrees) 20 hours per week if: - their visa (leave to remain/enter the UK) was issued prior to 3rd March 2010 - their visa was issued on or after 3rd March 2010 and they are studying for a degree or foundation degree. NB: at the point of recruitment we must have a letter from the educational establishment confirming they are a student, and the term times for that year. Alternatively a screen shot from the education provider website or prospectus can be provided to demonstrate the term-time dates. We must have information on file that outlines an international student’s term-time dates throughout their employment. If a student finishes their studies and can prove this by supplying a letter from their educational establishment, we can employ them in a full-time capacity until their student visa expires. If they want to continue working past expiry of their student visa, they must secure new right to work. A student who is within their term-time dates but has finished the taught part of their course, and claims to be free of the obligation to attend their educational establishment, will still be subject to the hours’ restriction. This is because they may be required to complete a dissertation or other home study. If a student tells us (or we become aware) that they are no longer studying, or that the educational establishment has lost its sponsor license, we should follow up with the college to confirm. If we receive confirmation that the student is no longer studying, or that they have lost their Sponsor License we must: let the central Employment Compliance Team know; suspend the individual using the standard letters; investigate to see if they’re able to prove they’ve applied for a different visa (or deferred to another course). Work Placements Some international students are able to work hours in excess of 10/20 hours per week if it is part of a courserelated work placement and is restricted to no more than one third of the total length of the course undertaken in the UK. The education sponsor will provide a letter addressed to Tesco confirming that the work placement forms an integral part of the course and does not breach the international student restrictions. We must take a copy of this letter and scan it to the central Employment Compliance team, and then place it on the personnel file. Student Visitors are not allowed to take employment in the UK. This includes work placements that form part of a course/period of study undertaken as a student. Tier 5: Temporary workers and Youth Mobility Temporary (not applicable to Tesco) This is applicable to people coming to the UK for primarily non-economic reasons or to undertake a temporary or one-off employment (e.g. entertainers, broadcasters). Youth Mobility Scheme This visa allows young people (between 18 and 30) from participating countries (Australia, Canada, Japan, New Zealand, Taiwan, and Monaco) to come and experience life in the UK for up to one year. British Overseas Territories Citizens British Overseas Territories Citizens (e.g. Bermuda, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, and the Virgin Islands amongst others), or British Overseas Citizens and British Nationals - overseas (some citizens of Hong-Kong prior to its transfer to China in 1997) may also use this route. They may work in any capacity. Internal, People manager’s guide to managing right to work in the UK Page 8 of 10 April 2016

UK Ancestry If someone is a Commonwealth citizen, they are aged 17 or over, and they have a grandparent (or parent) who was born in the UK, the Channel Islands or the Isle of Man (or the Republic of Ireland prior to 31st March 1922), they may be able to claim UK Ancestry. A UK Ancestry visa allows the holder to live in the UK for five years. So long as they have been in employment for five years, they can then apply for permanent residency. There are no restrictions on the type of work they can do. Dependant of an EEA or Swiss national or any of the above Dependants are spouses or civil or unmarried partners, and children under 18 years of age. In some cases they may also be a parent or a grandparent over the age of 65, or a child, sibling, or aunt/uncle over the age of 18 if the person is financially dependent on the person who has been granted leave to remain in the UK. (This does not have to be permanent or indefinite leave to remain). Dependants can work without the need for permission in their own right. They have the right to work in any capacity as detailed on their documentation, and are not bound to a specific job (which could be different to the person they are the dependant of, who may be tied to a specific job/employer). They will have been granted leave to remain as dependants before entering the UK, and have the right to work in the UK so long as they remain in the dependant partnership, and the relevant permission (Tier 1-5 etc.) of their family member is still valid. We are not responsible for checking the colleague is still in the dependant relationship. Asylum/Refugee/Humanitarian protection Asylum is protection given by a country to someone who is fleeing persecution in their own country. Generally, people who have applied for asylum receive a decision within six months and are then either required to leave the UK or may start to work. When an asylum seeker has applied for recognition as a refugee they cannot be removed from the UK until their application has been considered, and any appeal process concluded. Whilst going through the process, applicants generally do not have the right to work, unless they have applied for, and been granted, an Application Registration Card stating they can take employment. An asylum seeker whose claim is successful is granted refugee status, and will usually be issued with an Immigration Status Document (ISD) showing the period of leave they have been granted and whether employment is permitted. If they can also present evidence of a lawfully issued National Insurance number they may work for the period of time stipulated on their ISD. We must still contact the Employer Checking Service to verify all the documents are lawfully issued. If they have been allowed to work, there is no restriction on the type of work, or the number of hours they may work. After 5 years they can apply for settlement in the UK, and if successful will be issued with a Travel Document outlining their status as a refugee and that they have been granted permanent leave to remain. As such they will have no restrictions on their employment. Family visa These are issued to individuals who have been allowed to join their families already resident in the UK. There are not usually any restrictions on their employment other than the expiry date on their visa. Discretionary Leave to Remain If someone has been granted leave to remain under this category, it means that there are particular reasons which sit outside the normal grounds for staying and working in the UK, that have been considered. Individuals are able to live and work as per the comments on their visa – usually there are no restrictions on their employment other than their visa expiry date. Business Visitors These are colleagues who may enter the country and visit a business premises, but may not carry out any productive work, or any work that constitutes employment in the UK. The following are a list of ‘permissible activities’ under the business visitor visa: Internal, People manager’s guide to managing right to work in the UK Page 9 of 10 April 2016

-

Attending meetings/conferences/interviews that have been arranged before coming to the UK; Arranging deals, negotiating or signing trade agreements or contracts; Undertaking fact finding missions; Training (although this must be specific one-off training in techniques and working practice) which must be classroom based or observation only, not ‘on the job’ training involving productive work; Speaking at a one-off conference where this is not run as a commercial concern; Board level Directors attending Board meetings in the UK provided they are not employed by a UK company although they may be paid a fee for attending the meeting.

Migrant workers who enter Tesco UK on a Business Visitor visa to perform ‘productive work’ are putting our sponsor license at risk, as they should hold a Tier 2 visa instead. Productive work includes: - Working on projects or live transactions; - Analysing information and undertaking research; - Performing the same job as the colleague would be undertaking in the overseas office; - Replacing/covering the same jobs as someone in the UK e.g. maternity or sick cover. If you require a Business Visitor Visa please contact Group Mobility: [email protected]

Internal, People manager’s guide to managing right to work in the UK Page 10 of 10 April 2016