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BUSINESS BEAT
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NEW RULES FOR RIGHT TO WORK CHECKS
For some time the government has demanded that employers check that their employees can legally work in the UK. Termed ‘right to work checks’, all employers must carry them out on every individual - and before they start to ensure that they are not disqualified from working because of their immigration status.
A number of temporary changes were introduced to these right to work checks from 30 March 2020 to aide employers during the Covid-19 pandemic when working from home was mandated by the government. These changes came to an end on 30 September 2022, and employers must now carry out checks on original documents in the individual’s presence when conducting manual checks in line with the Home Office’s Employer’s Guide to Right to Work Checks which is on gov.uk.
By completing a check which is compliant with the Home Office’s guide, a statutory defence will be obtained against civil penalties which can otherwise be imposed where the employer is found to be employing an illegal worker. The penalties are harsh. The civil penalty stands at £20,000 per illegal worker and rises to an unlimited fine and up to five years in prison.
New rules have been brought in by the Home Office which will affect employers as they check on employees’ right to work in the UK
COVID-19 ADJUSTED CHECKS
As background, the Covid-19 pandemic brought about a number of changes to the way people worked which made carrying out compliant checks on physical documents impractical. As such, on 30 March 2020 the Home Office introduced an adjusted right to work checking process that accounted for the fact that many people were required to work from home during periods of national lockdown.
Under the adjusted scheme, employers were able to carry out checks using video calls rather than in person; and on scanned images or photos of documents received via email or a mobile app rather than on originals only.
The use of these adjusted measures ended on 30 September 2022.
And where prospective or existing employees could not provide any of the accepted documents, as detailed in the Home Office guide, employers had to use the Home Office’s Employer Checking Service available online. That process remains unchanged.
THREE WAYS TO CHECK
Because, from 1 October 2022, employers are no longer able to carry out adjusted right to
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work checks, they will be required to carry out checks via one of the following three ways. y A manual right to work check (for British and Irish nationals only); y A right to work check using Identity
Document Validation Technology via the services of an Identity Service Provider (for British and Irish nationals with a valid passport only); y A Home Office online right to work check for individuals with biometric residence permits, biometric residence cards, frontier worker permits or e-visas (including those granted status under the
EU Settlement Scheme). To conduct an online check employers will need a “share code” from the individual, as well as their date of birth.
And where an individual is not able to present evidence of their right to work because an application to the Home Office has been made but is outstanding, employers should continue to use the Employer Checking Service to obtain a definitive response.
As for the original documents on the Home Office’s list of acceptable documents, they must now be checked in the presence of the individual, either in-person or via a video call. The fact that it will continue to be possible to verify the validity of documents via video call will be welcome, given that remote or hybrid working is increasingly common for many organisations. However, this may still cause challenges where individuals working remotely are required to present their passport and are reluctant to do so by post.
It should be remembered that part of the process requires employers make and retain a clear electronic or hard copy of the document and also, make a record of the date on which the check was performed.
NO RETROSPECTIVE OR FOLLOW UP CHECKS
The Home Office has confirmed that employers will not be required to carry out retrospective right to work checks on those employees who had an adjusted check carried out between 30 March 2020 and 30 September 2022.
A statutory defence will be maintained against civil penalties provided the check was carried out in line with the prescribed guidance on adjusted checks at the relevant time. However, organisations whose processes did not keep up with the evolving Home Office requirements would be well advised to undertake an audit and carry out checks retrospectively if there are concerns. While this will not afford the statutory excuse, it will provide an opportunity to identify any employees who may be of concern and deal with them appropriately.
Notably, where an individual has a timelimited right to work, follow on checks will still be required before the expiry of their current immigration permission.
EMPLOYERS MUST RESPOND
Very simply, employers must ensure that the people within their business responsible for carrying out right to work checks are aware of what is required of them in order to complete a compliant check from 1 October 2022.
There have been a number of changes to the right to work checking process since March 2020, including changes to the way checks are carried out on EEA citizens following Brexit, and the introduction of mandatory online checks for certain individuals from 6 April 2022. It is therefore essential that the relevant people in the business have upto-date knowledge of the current checking requirements, to ensure the company is complying with its legal obligations to prevent illegal working. It follows that training for all those involved in the process of checking right to work is highly recommended.
Right to work policies and procedures are likely to have become out of date on 1 October 2022 and should be updated in line with the changes. Those which haven’t been kept up to date with earlier changes since Brexit would particularly benefit from a refresh. Where right to work processes were lax during the pandemic, this is a good opportunity to carry out audits and retrospective checks.
Where an organisation has a sponsor licence to sponsor migrant workers (or is interested in obtaining one), it is a condition of being granted and retaining it that immigration (and general employment) obligations are fully complied with. Therefore there is even greater need for vigilance in this area to avoid the licence being revoked by the Home Office.
Lastly, where the business no longer wishes to carry out manual right to work checks itself and is considering using an Identity Service Provider for checks on British and Irish nationals, efforts should be made to find a suitable provider to engage and enter into an appropriate commercial arrangement with.
IN SUMMARY
The process for checking an employee’s right to work is well defined and has been in place for some time. The advice is clear. Understand and follow the rules and if in any doubt, seek good advice.
Written in association with Shabana Muneer and Ruth Jowett
Shabana Muneer is a director and head of business immigration, and Ruth Jowett is an associate, at Walker Morris
