REMINDER: New rules for
right to work checks
from today
6 April 2022
As Smith Stone Walters previously reported, the Home Office has introduced some significant changes to the way employers carry out right to work checks on their employees. The changes come into effect today (6 April 2022), and any checks carried out on or after this date must comply with the new guidance.
All UK employers are required by law to carry out initial right to work checks on their employees, in order to prevent illegal working. It is an offence to knowingly employ anyone who does not have the right to work in the UK by reason of their immigration status. Employers can face a civil penalty of up to £20,000 for each illegally employed worker who does not have the right to work in the UK, and where correct right to work checks were not undertaken. Carrying out compliant right to work checks on your employees provides your business with a statutory excuse and protects you against liability for a civil penalty if that person is later found to be working for you illegally.
Below, we recap the different types of right to work checks and highlight the key changes which came into effect today.
Types of right to work check
In order to establish a statutory excuse, employers must do one of the following three right to work checks before the employee commences employment:
- A manual right to work check
- A Home Office online right to work check
- A right to work check using Identity Document Validation Technology (IDVT) via the services of a certified Identity Service Provider (IDSP).
You should conduct a right to work check before you employ a person to ensure they are legally allowed to do the work in question for you. If an individual’s right to work is time limited, you should conduct a follow up check shortly before it is due to come to an end.
Digital checks using certified Identity Service Providers (IDSPs)
From 6 April 2022, employers can make use of new Identity Document Validation Technology (IDVT) via the services of a certified Identity Service Provider (IDSP) to complete the digital identity verification element of right to work checks for British and Irish citizens who hold a valid passport (including Irish passport cards).
Basic steps for conducting a right to work check using an IDSP are as follows:
- IDSPs can carry out digital identity verification to a range of standards or levels of confidence. The Home Office recommends that employers only accept checks via an IDSP that satisfy a minimum of a Medium Level of Confidence.
- Satisfy yourself that the photograph and biographic details on the output from the IDVT check are consistent with the individual presenting themselves for work.
- Retain a clear copy of the IDVT identity check output for the duration of employment and for two years after the employment has come to an end.
A list of certified IDSPs for employers to choose from will appear on the GOV.UK website here once certifications have taken place. There are currently no IDSPs certified. Employers, landlords, and other relevant organisations interested in procuring a certified IDSP should engage directly with those IDSPs once a list is available.
Employers using this new service should be aware that despite engaging the services of an IDSP to carry out the necessary checks, the employer remains responsible for ensuring the IDSP is carrying out the check correctly. You will only have a statutory excuse if you reasonably believe that the IDSP has carried out their checks in accordance with the Home Office guidance.
Online checks now required for certain foreign nationals
The way in which Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) holders evidence their right to work has changed.
From 6 April 2022, BRC, BRP and FWP holders must evidence their right to work using the Home Office online service only. Employers can no longer accept physical cards for the purposes of a right to work check even if it shows a later expiry date. BRCs, BRPs and FWPs have been removed from the lists of acceptable documents used to conduct a manual right to work check.
The Home Office online right to work check service is free to use and is available here: www.gov.uk/view-right-to-work. To use the service, you will need the individual’s date of birth and their share code, which they can obtain here: https://www.gov.uk/prove-right-to-work.
Further changes from 1 October 2022
The temporary adjustments to right to work checks due to COVID-19 will end on 30 September 2022 (inclusive). This means that from 1 October, employers must revert to manual checks for British and Irish nationals and may only carry out remote checks via the services of an IDSP.
You do not need to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 30 September 2022 (inclusive).
Next steps for employers
Following the implementation of the above changes, now is a good time for employers to review their internal processes regarding right to work checks and make any changes as necessary. Steps you can take now include:
- Review and update your internal recruitment and onboarding policies regarding right to work checks.
- Carry out an audit of current employees who hold an immigration status that is time limited and diarise to conduct follow-up checks before their current permission comes to an end.
- Ensure any employees responsible for carrying out checks are aware of the changes and provided with training where necessary.
- Consider how you will carry out right to work checks on your remote workforce when COVID-19 adjustments end on 30 September.
- Decide whether you will engage the services of an IDSP.
Advice on immigration compliance
Right to work checks are an essential responsibility for all employers, no matter the size of your business. Those employers who are also licensed to sponsor migrant workers face additional compliance responsibilities which must be upheld in order to maintain your licence.
Smith Stone Walters can support your organisation in maintaining immigration compliance, from carrying out mock audits to providing training for your staff. To find out how we can help, please contact us today.
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