There are some significant changes to the rules and guidance in relation to right to work checks for all checks carried out on or after 6 April 2022 and further changes are due to come into effect on 1 October 2022. It’s important that employers are aware of these changes set out in the guidance and update their processes.
This is because carrying out compliant right to work checks on all employees before they start work provides employers with a statutory defence against a civil penalty in the event that it later transpires that the employee does not have the right to work in the UK. The civil penalty per employee can be up to £20,000 and employers may also face criminal sanctions if they employ someone who they know or should reasonably have known did not have the right to work in the UK.
Where the employee holds a sponsor licence, it is also now a sponsor duty to carry out compliant right to work checks. When UK Visas & Immigration carry out their audits on sponsors, they often focus on the employer’s right to work check processes.
In short, all employers should have robust right to work processes in place to ensure that any new starter has the right to work before they start work and to ensure that any required follow up right to work checks are carried out.
Compulsory online right to work checks for certain non-British and non-Irish nationals from 6 April 2022 using the Home Office portal
For individuals who hold any of the following, employers may only use the online right to work check service from 6 April 2022:
- Biometric Residence Permit (BRP);
- Biometric Residence Card (BRC); or
- Frontier Worker Permit
There is no cost for the online right to work check service which is available at: www.gov.uk/view-right-to-work.
Employers need the individual’s date of birth and a share code which is generated by the individual accessing the "Prove your right to work" portal.
The employer should ensure that the share code begins with the letter W and the employer must then access the section entitled “View a job applicant’s right to work details” using the individual’s share code and date of birth. The online check must be carried out in the presence of the individual – either in person or during a video call.
Those with pre-settled or settled status under the EU Settlement Scheme
Employers must also use the online right to work check service for those with status under the EU Settlement Scheme (settled and pre-settled status) and cannot rely on a manual check or simply seeing the approval letter. Please note however that employers do not need to carry out retrospective checks for those who started work prior to 1 July 2021.
Other non-British and non-Irish nationals
Employers must still undertake a manual right to work check in the usual way for all other non-British and non-Irish nationals. Covid adjusted virtual checks continue to be permitted until 30 September 2022.
A new type of right to work check for British and Irish nationals with valid passports from 6 April 2022
A new type of digital right to work check is also being introduced for British and Irish nationals with valid passports from 6 April 2022.
Employers may choose to use an ID Service Provider (IDSP) to carry out remote digital checks if the individual is a British or Irish national with a valid passport or a valid Irish passport card. The individual must upload their passport to be checked.
This service will be chargeable and the IDSPs are likely to charge anything up to £70 per check.
Employers should be aware that they are not fully outsourcing the right to work checks to the IDSPs as the employer remains responsible for ensuring the IDSP is carrying out the check correctly and for providing the necessary training and guidance to staff. The employer must also carry out own due diligence to satisfy themselves to a “reasonable belief” that:
- the IDSP completed the check correctly in the prescribed manner; and
- the photo and bio details on the IDVT identity check match the individual.
Employers must also address any discrepancies e.g. if names differ between documents the employer must be satisfied that the documents relate to the individual.
Alternatively, employers may continue to undertake manual checks in the usual way for all British and Irish nationals and indeed, if the individual does not have a valid passport, a manual check must be undertaken. Covid adjusted right to work checks remain in place until 30 September 2022.
This new type of right to work check is likely to be helpful for employers where employees work remotely as from 1 October 2022 remote checks for British and Irish nationals may only be undertaken via an IDSP.
In all cases, checks must still be undertaken before the person starts work and a follow up check must be undertaken shortly before the person’s leave expires if they have time limited leave. Evidence of the right to work check must be retained in all cases for the duration of the person’s employment and for two years afterwards.
Employment considerations
There are a number of steps employers should take now, including:
- updating employment contracts and offer letters to require employees to provide the necessary information to the employer or IDSP to undertake the check;
- updating internal policies in relation to vetting and onboarding employees;
- ensuring employees are trained in relation to the new rules on right to work checks;
- deciding whether to engage an IDSP and, if so, whether to use a certified provider and train staff and put in place necessary policies and update the employee privacy notice; and
- considering how right to work checks will be undertaken for remote workers once Covid adjusted checks end on 30 September 2022.
Kerry Garcia
Jackie Penlington