Updates to the employer
guidance on right
to work checks
10 March 2023
The Home Office has recently updated its guidance for employers on right to work checks. The latest version of the guidance applies to right to work checks conducted on or after 26 January 2023.
The guidance advises employers on how to conduct a compliant right to work check to establish a statutory excuse against liability for a civil penalty.
The most significant updates relate to:
- Clarification for employers on the use of Identity Document Validation Technology (IDVT) and Identity Service Providers (IDSPs) to support manual document-based and Home Office online checking service right to work checks.
- The use of “Reusable Identities” for checks involving the use of IDSPs (Annex C, Appendix A).
- The end of the COVID-19 temporary adjusted checks on 30 September 2022.
- Changes to enable some individuals with an outstanding, in-time application for permission to stay in the UK, or an appeal, or administrative review (3C leave) to prove their right to work using the Home Office online checking service.
- Confirmation that Re-Admission to the UK (RUK) endorsements are an acceptable document for the purposes of right to work checks (List A, no. 4).
- Information on sponsored work and student categories (Annex B).
- Information on short-dated Biometric Residence Permits (BRPs).
Smith Stone Walters would like to take this opportunity to offer a brief reminder of the different types of right to work check and how to establish a statutory excuse.
Types of right to work check
All employers are required by law to carry out right to work checks on each individual they intend to hire, in order to prevent illegal working.
Since 1 October 2022, employers must carry out one of the following checks before employment commences:
- A manual right to work check using original documents.
- A Home Office online right to work check.
- A right to work check using IDVT through the services of an Identity Service Provider (IDSP).
Conducting any of these checks in accordance with the guidance will provide the employer with a statutory excuse which defends against liability for a civil penalty.
Manual right to work checks
When carrying out a manual right to work check, the employer must obtain original documents from either List A or List B of acceptable documents. The employer must check that the documents are valid with the applicant present and must make and keep copies of the documents and record the date they made the check.
During COVID-19, changes were made to the rules to enable employers to check an employee’s documents virtually via video call. However, these measures have now ended and employers must revert to checking physical documents when conducting a manual right to work check.
Home Office online right to work checks
Currently, a Home Office online right to work check can be carried out for a range of individuals, depending on the type of immigration documentation they are issued with. This includes holders of status under the EU Settlement Scheme (EUSS).
Some individuals have been issued with an eVisa (a digital immigration status) and can only use the online service to prove their right to work. Holders of Biometric Residence Cards (BRC), Biometric Residence Permits (BRP) and Frontier Worker Permits (FWP) must now also use the online service to evidence their right to work. This means employers can no longer accept or check a physical BRC, BRP or FWP as proof of right to work.
To conduct an online check, the employer must ask the applicant to obtain and send them a share code and use this to view an applicant’s right to work details. You must retain evidence of the online right to work check and store this securely either electronically or in hard copy.
Employers should note that it will not be possible to conduct an online right to work check in all circumstances, as not all individuals will have an immigration status that can be checked online.
Right to work checks using an IDSP
Since 6 April 2022, employers have been able to make use of new technology to conduct the identity verification elements of a right to work check on British and Irish citizens.
Employers can pay a privately operated and Home Office approved Identity Service Provider (IDSP) to conduct checks remotely using Identity Document Validation Technology (IDVT). More detailed steps on conducting a check via an IDSP is contained in the guidance for employers.
The Home Office Employer Checking Service
In certain circumstances, an employer may need to contact the Home Office Employer Checking Service (ECS) to establish a statutory excuse.
You can use the ECS to ask the Home Office to check an employee or potential employee’s immigration status if they cannot show their documents or online immigration status. The ECS aims to provide a response within five working days of receiving a valid request.
Speak to an immigration advisor
Right to work checks are an essential requirement for all UK employers – they are not optional. 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, or where the correct checks were not undertaken. Businesses could also lose the ability to sponsor migrant workers and even face criminal convictions if they do not comply with the guidelines.
If you have any questions on right to work checks, contact us today to speak to a qualified immigration advisor.
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