Right to Work Checks: Are you ready for the change?

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During the pandemic, the UK Government introduced measures that changed the way in which employers carried out right to work checks on both current and prospective employees. The current guidelines in place allow employers to accept scanned or photographic copies of right to work documentation, rather than original documents and carry out checks via video call. Extended on 6 April 2022, these temporary measures will now end on 30 September 2022.

What is changing for right to work checks?

British and Irish nationals

From1 October 2022 right to work checks must be carried out manually, or if employers wish to continue carrying out checks digitally, they must use Identification Document Validation Technology (IDVT). Digital identity checks are operated by certified Identity Service Providers (ISP) who will (for a fee) act on behalf of the employer to carry out right to work checks. The process will allow British and Irish nationals to submit images of their personal documentation using IDVT instead of a scan or photographic copy. The ISP will record the necessary information for the employer to review and complete the right to work check and gain the statutory excuse against liability for a civil penalty in the event of an illegal worker.

If an employer chooses to carry out manual checks they must ensure they obtain the right documentation (a full list of acceptable documentation can be found here). Employers must check the documents are genuine, the photo and name match the individual, and the documents have not expired. It is important to retain a copy of the documents together with a record of when the check was made, to demonstrate that the appropriate checks have been carried out.

Rest of the world without a residence permit or digital status

Manual right to work checks must also be carried out for those outside of the UK who do not have a residence permit or any form of digital status. The way in which the manual check is carried out for these individuals follows the same process as conducting a manual check on British and Irish nationals.

What is not changing?

Since 6 April 2022, right to work checks for those who hold a valid residence permit or digital status must only be conducted online using the Home Office online service. This will continue post 30 September 2022.

In order to conduct an online right to work check (and with the employees consent), the employee must access the Government’s online portal and generate a share code which should then be shared with their employer. The employer will then need to input the employee’s share code (along with the employees date of birth) into a separate Government portal which will generate an image of the employee, as well as any time limits on the individual’s right to work and any work restrictions. Follow up checks are not required if an individual has the continuous right to work, but if the individual has a time limit on their right to work in the UK a follow up check must be carried out by the employer before the expiry of immigration permission.

If the employee is unable to provide their right to work documents, for example because they have an outstanding application with the Home Office, then you must carry out a different online check using the Employer Checking Service which will generate either a Positive or Negative Verification Notice. A Positive Verification Notice is evidence that the employee has an outstanding application and will suffice as evidence of the employee’s right to work until their visa is approved by the Home Office. If a Negative Verification Notice is generated, this is evidence that the individual does not have the right to work and you should consider taking appropriate action to avoid a civil penalty against any illegal working from the Home Office, including not employing them or if they are an existing employee, ending their employment.

How can employers make sure they are fully compliant?

  • Ask all prospective employees to demonstrate their right to work before they begin employment
  • Make sure to obtain the correct documentation. A full list of acceptable documents can be found
  • If using IDVT, ensure that the ISP subscribed to is certified to the required standards (a list of certified providers can be found here).
  • Provide appropriate training and guidance for employees, covering the information that they must obtain from the ISP to verify someone’s identity, what the information can be used for and what other requirements they still need to fulfil to establish eligibility to work.
  • Provide an alternative to IDVT to ensure that employees who do not wish to prove their identity using an ISP are not treated less favourably. In such circumstance employers must carry out checks in person and the employee must present the original documents to their employer.
  • Retain a copy of the right to work check whether it is carried out using the Home Office online service, an ISP or manually.

What happens if an employer does not comply with the changes?

78% of the 501 decision-makers in large UK businesses surveyed by Xydus did not know they could face imprisonment if non-compliant with their right to work checking obligations. Should the Home Office deem that you knew or should reasonably have known the individual was working illegally, then this would be dealt with as a criminal case, which can attract an unlimited fine and up to five years imprisonment.

 

Pie chart infographic about changes to right to work checks for businesses in the UK new points-based immigration system

 

There is a civil penalty of up to £20,000 per worker that is found to be employed illegally. The Home Office will also ‘name and shame’ anyone who receives a civil penalty. Doing a correct right to work check will give an employer a defence against the civil penalty, so it is crucial that the checks are carried out correctly.

Any civil or criminal sanctions imposed may also affect an employer’s sponsor licence, including revocation of the licence. It is therefore very important to take all practical steps to ensure that all employees have the necessary right to work in the role they have been hired for.

 


If you need further help or advice on right to work checks, get in touch with our dedicated business immigration team.