It has never been more important to make sure your business is up to date with its Right to Work checks obligations. Employers who employ people found illegally working can face civil penalties up to £20,000 per person. There are also potential criminal sanctions.
Close to 1000 civil penalties were issued in 2022 and the Home Office has announced they plan to focus more on addressing illegal working in the UK. Employers are also becoming more exposed to the Home Office as the numbers acquiring licences to sponsor overseas workers continue to rapidly increase.
In addition to inspections, the Home Office issue Information Requests setting out allegations of breaches to the Right to Work guidance. Employers are required to respond with how they have complied with their Right to Work checks obligations. There have been reports of an increase in the number of information requests sent to employers in 2023.
With this in mind, we have put together the following summary of the requirements.
The Right to Work checks
All employers are required by law to carry out Right to Work checks on anyone they intend to hire. 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 Identity Document Validation Technology (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 in Annex A of the Right to Work guidance.
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. Manual Right to Work checks are commonly undertaken for those who have a British passport.
Employers must check physical documents in person when conducting a manual Right to Work check. They cannot be undertaken via video-calls.
Home Office online Right to Work checks
Home Office online Right to Work check will be required for most individuals who are not British or Irish citizens. This includes:
- EU nationals with status via the EU Settlement Scheme (EUSS)
- Anyone issued with an eVisa (a digital immigration status)
- Holders of Biometric Residence Permits (BRP)
Since 6 April 2022 it has been mandatory that online Right to Work checks must be done for those applicants with BRPs. Employers can no longer accept or check physical cards as proof of Right to Work. Retrospective checks will not be required for Right to Work checks conducted before 6 April 2022 relying on physical cards.
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 and there have been reports of problems with the online system. Not all individuals will have an immigration status that can be checked online and other forms of checks are available, including the Employer Checking Service (see below).
However, in such circumstances, you should seek advice if in doubt of what procedure to follow and any issues that may arise. The Home Office also have a helpline 0300 790 6268.
Right to Work checks using an IDSP
Since 6 April 2022, employers have been able to make use of digital identity verification services for Right to Work checks on British and Irish citizens.
Employers can instruct a 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 are contained in the guidance for employers at Annex C.
The Home Office Employer Checking Service
In certain circumstances, an employer may need to contact the Home Office Employer Checking Service (ECS).
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.
The Immigration team at Stephens Scown advises businesses on employing migrant workers and on their compliance obligations. To discuss any of the issues raised in this article, please email firstname.lastname@example.org or call 01392 210700.