All UK employers have a duty to prevent illegal working and accordingly, they must conduct Right to Work checks on any potential new employee, regardless of where they come from. In certain cases, a follow-up check will also need to be carried out on current employees who hold temporary immigration permission to stay in the UK.
Employers must conduct Right to Work checks in a prescribed manner as detailed within the Home Office guidance in place at the date of the Right to Work check. This will result in the employer having a defence known as a “statutory excuse” against any Home Office enforcement action. Failure to do so could result in serious consequences for your organisation.
The Home Office has significant powers at its disposal if a business has been found to be employing someone illegally and does not have a statutory excuse. The sanctions include a civil penalty of up to £20,000 per illegal worker, closure of a business, disqualification as a director, seizure of earnings made as a result of illegal working, review and possible revocation of a licence in certain sectors and the business details published in the Home Office list of non-compliant employers. In serious cases, a criminal conviction could be pursued which carries a sentence of up to 5 years in prison and an unlimited fine.
During the COVID-19 pandemic, the UK government recognised that it was not always possible to undertake the Right to Work checks and in particular, to verify the genuineness of a person’s ID, as face-face meetings were not always possible. As a result, the UK government introduced Adjusted Right to Work checks from 30 March 2020 – as explained in our previous blog. Although this was only ever meant to be a temporary solution, the scheme has been extended repeatedly since then.
The Home Office have confirmed that the Adjusted Right to Work checks scheme will now finally end on 30 September 2022.
Employers must therefore be mindful that from 1 October 2022, they will no longer be able to rely on the Adjusted Right to Work checks scheme as a “statutory excuse” against any potential Home Office enforcement action.
Right to Work checks from 1 October 2022
Going forward, employers will be required to undertake Right to Work checks on potential employees and current employees, where relevant, in the following three ways: -
- A manual Right to Work check;
- A Right to Work check using an Identification Document Validation Technology (IDVT) check via the services of an Identity Service Provider (IDSP); and
- Home Office Online Right to Work Check.
Employers do not need to carry out retrospective Right to Work checks on those who had an adjusted Right to Work check between 30 March 2020 and 30 September 2022 (inclusive) as they will maintain a defence against a civil penalty – provided the Right to Work check undertaken during this period was done in the prescribed standard manner or as set out in the COVID-19 adjusted checks guidance.
What is a manual Right to Work check?
Conducting a manual Right to Work check is a three-step process – as detailed below.
- The employer must obtain an original ID document from the individual and a full list of acceptable documents can be found here;
- Check that the documents relied upon are genuine and valid. You should check that the photograph and name of the document holder matches the prospective or existing employee and that the document has not expired; and
- Once done, a copy of the documents relied upon must be taken and retained securely for the length of employment, plus an additional two years. It must then be destroyed.
Conducting a manual Right to Work check is free, quick, and normally simple, but it should not be taken lightly. The Home Office expects every employer to check that the name, photograph and personal details matches the person presenting the document. If the employer employs the person when it is clear the documents are not authentic or match the employee, the Right to Work check has not been carried out in the prescribed manner and they could be liable for potential Home Office enforcement action.
What is an IDVT check?
Employers can engage the services of an identity service provider (IDSP) to carry out Right to Work checks on their behalf, by utilising Identification Document Validation Technology (IDVT), but only if the job applicant holds a British or Irish passport. One benefit of using an IDSP is that the checks are carried out remotely, but unlike the manual and online Right to Work checks, ISDPs will charge employers a fee for their service. Importantly, outsourcing Right to Work checks does not absolve the employer of responsibility. The Home Office only recommends, rather than requires, that businesses use a certified IDSP, and it is for the employer to verify that the service provider is complying with the rules.
The process allows British and Irish nationals to submit images of their personal documentation using this technology. The IDSP then records the necessary information for the employer to review. The employer has to complete the Right to Work check and ensure the information obtained matches the prospective or existing employee. The employer must also obtain proof of any checks carried out by the IDSP and store these securely, as per the same time frame as above.
What is an online check?
Manual checks cannot be carried out against everyone. Employers can no longer conduct manual Right to Work checks on holders of Biometric Residence Cards (BRCs), Biometric Residence Permits (BRPs) and Frontier Worker Permit (FWPs). Instead, the Home Office online checking service must be used.
In order to conduct a valid online right to work check, employers must obtain the existing employee or potential employee’s consent.
The potential employee or existing employee must access the Home Office’s online portal and generate a unique share code, which should then be shared with their employer. The employer will then enter the unique share code into the Home Office’s online portal for employers, with the applicant’s date of birth, to access a profile page. This will confirm the applicant’s name, picture, and details of their immigration status – including any restrictions on their right to work in the UK. Again, a copy of this page should be retained, either physically or digitally, and should then be destroyed two years after the end of employment.
It is always the duty of the employer to carry out Right to Work checks, never the employee. Now that the pandemic rules have ended, it is important for all employers to refresh their knowledge and ensure that their businesses are meeting the requirements. The benefits of doing so far outweigh the risks of non-compliance.
If you would like any further information and advice in respect of these Right to Work changes or have any other questions relating to Immigration Law, please contact our specialist Immigration team on 03330 430350.
