Insights
Insights 12.4.22 Author: Andreja Okamgba

Right to Work checks – Changes from 6 April 2022

Insights 12.04.2022 Author: Andreja Okamgba

The Employer’s Guide right to work checks has now been updated to reflect the changes in legislation which came into force on 6 April 2022. The associated Right to work checklist has also been updated.

The new guidance now distinguishes between three different ways for employers to check new prospective employees’ right to work. The process is going through digitalisation, which is welcome, but currently leaves the employer stuck between manual and online checks and having to use both because neither approach alone works for all scenarios anymore.

  1. We still have the manual document-based check options, but some documents have now been removed and can no longer be checked manually
  2. Instead of checking the original document, employers are now required to use the Home Office online check
  3. Additionally, Identity Document Validation Technology (IDVT) is now being introduced where employers will be able to outsource the checking process to an identity service provider (IDSP), this is currently only available for checking the right to work of British and Irish citizens who hold a valid passport (including Irish passport cards)

In certain circumstances, where it is not possible to complete the check in any of the above prescribed ways, the employer will need to contact the Home Office’s Employer Checking Service (ECS) to establish a statutory excuse.

Within the new guidance we now also have an updated Annex F added on Ukraine, to support employers seeking guidance on what documentation Ukrainian nationals will need to prove their right to work.

It is also worth noting that the end date for the temporary adjusted checks due to Covid has now been deferred to 30 September 2022 (inclusive).

What hasn’t changed:

  • Right to work checks must still be completed on all employees
  • Checks must be completed before the employee starts work
  • Doing the checks correctly via one of the approved methods provides statutory excuse against the civil penalty

Manual check

The main change under the manual right to work check regime is that there are a number of documents which are now no longer accepted and as such no longer appear on the checklist. Notably this includes Biometric Residence Permits and Frontier Worker permits. If presented with these documents, the employer should use the online check and a manual check will no longer lead to a statutory excuse. For other documents that remain on the checklist, the three-step process remains:

  • Obtain document originals
  • Check that the document is genuine, photograph matched, date of birth matches the age of the employee, note any expiry dates and work restrictions
  • Copy the document and keep this in hard copy or electronically with a record of the date the check was made, retain for duration of employment and two years afterwards.

Online check

The online check has been available since 28 January 2019 and is now expanding in scope. In addition to those individuals with a status under the EU Settlement Scheme, you will now also have to conduct the online check for anyone with a BRP or Frontier Worker permit. The online check is the only way these individuals can prove their right to work. The process is conducted fully online:

  • The employee shares a nine characters long code (starts with W for work) which is valid for 90 days
  • Employer needs to use the code together with the individual’s DOB to view a job applicant’s right to work details; this must be done through the employer’s access and viewing the applicant’s part of the system will not suffice
  • Employers must check the record, and ensure that the person looks like the photograph on the record
  • Retain evidence of the check for duration of employment and two years afterwards

Identity Validation Technology (IDVT)

For the first time employers will be allowed to outsource right to work checks to an Identity Service Provider (IDSP), but responsibility and liability remain with the employer. This is currently only available for British and Irish passport holders. It is not mandatory to use IDVT and employers can continue to use manual checks if they prefer.

The list of certification IDSPs (Identification Service Providers) is still to be published; six organizations have put themselves forward to be accreditation bodies to certify providers: News Highlights – UKAS. Once established, the process will be:

  • IDSP acting on behalf of employer carries out digital ID verification
  • IDSP provides output
  • Employer carries out own due diligence to satisfy themselves to a reasonable belief that the IDSP completed the check correctly, check photo matches the person presenting for work, discrepancies are addressed
  • Documents to be kept securely for duration of employment and two years afterwards

Sanctions

It is illegal to employ someone aged 16 or over who is subject to immigration control and who is not allowed to undertake the work in question (by reason of their immigration status). If a company is found to be employing someone illegally and the prescribed checks have not been carried out, or have been done incorrectly, sanctions may be applied, including:

  • A civil penalty of up to £20,000 per illegal worker
  • In serious cases, a criminal conviction carrying a prison sentence of up to five years and an unlimited fine
  • Closure of the business and a compliance order issued by the court
  • Disqualification as a director
  • Not being able to sponsor migrants
  • Seizure of earnings made as a result of illegal working
  • Review and possible revocation of a licence in the alcohol and late-night refreshment sector and the private hire vehicle and taxi sector

Working illegally is a criminal offence. Illegal workers face having their wages seized. They may also be prosecuted and can be imprisoned for up to six months.

What next?

If you would like any help with the right to work processes in your organisation, please contact our HR Consultancy team.