On 6 April 2022 the Home Office announced further updated guidance on right to work checks in the UK for employers to check if a potential employee has the right to work in the UK, including British nationals, EEA and Swiss citizens and non- EEA nationals.
These right to work checks, if followed correctly, provide the employer with a statutory excuse against liability for a civil penalty in the event the employer has been found to have employed someone who does not have the right to carry out the work in question.
How to establish a statutory excuse
An employer should conduct the right to work check before they employ a person by one of the following:
- A manual right to work check
- A right to work check using Identity Document Validation Technology (IDVT) by using the services of an Identity Service Provider (IDSP)
- A home Office online right to work checks
Manual Check
Employers must obtain original documents from either List A, (individuals who have a continuous right to work in the UK, including British and Irish nationals) or List B, (where a potential employee has a temporary right to work in the UK.) List A and List B documents can be found in this link: Employers’ right to work checklist.
Employers must check that the documents are genuine, that the photographs and dates of birth are consistent with the person presenting them and that any expiry dates for permission to be in the UK have not passed. Employers should also check any work restrictions to determine if the person is allowed to do the type of work on offer or in the case of students for example that they would be within the time limit of their permitted work periods. (Employers can check this by requesting details of the student’s academic term and vacation periods covering their period of study in the UK).
Employers must then make a clear copy of each document and record the date on which the check was made and retain the evidence of every document they have checked, either hard copy or a scanned copy for the duration of the person’s employment and for a further two years after they stop working for them.
Using an Identity Service Provider (IDSP)
From 6 April 2022 employers can use Identity Document Validation Technology (IDVT) through the services of an IDSP to complete the digital identity verification element of right to work checks for British and Irish nationals who hold a valid passport. A list of certified providers is available from Gov.UK which can be found in this link: Digital identity certification for right to work, right to rent and criminal record checks. It is not mandatory for an employer to use a certified provider, they can use a provider of their choice not included on the Home Office list if the employer is satisfied that they are able to provide the required checks.
Home Office Right to Work Check
Employers can conduct an online check by using the online service in this link: View a job applicant’s right to work details. They will need the potential employee’s date of birth and their right to work share code.
From 6 April 2022 Biometric Residence Permit (BRP), Biometrics Residence Card (BRC) and Frontier Worker (FWP) holders are only able to show their right to work using the Home Office online service which means employers cannot accept a physical BRP, BRC or FWP as proof of right to work. Retrospective checks will not be required on biometric card holders who before 6 April 2022 used their physical card to demonstrate their right to work in the UK. Employers will maintain a statutory excuse against a civil penalty if the initial checks were undertaken in line with the Home Office guidance that applied at the time the check was made.
Both individuals and employers can use the Home Office online checking service. An employer can ask the potential employee to obtain a share code from the Gov.UK website, Prove your right to work to an employer. where they generate a 9 character long share code, (valid for 90 days), which they pass onto their employer. This is then entered into the link, to view a job applicant’s right to work details together with the individual’s date of birth and the employer can access the right to work information.
The employer must then check the potential employee’s details including photograph to confirm it is the potential employee, (or when doing a follow up check, the existing employee), for those with temporary permission in the UK. The employer must only employ the person or continue to employ an existing employee if the online check confirms they have the right to work in the UK and are not subject to a condition preventing them from doing the work in question. The employer must retain evidence of the online right to work check.
If the potential employee cannot show their documents
An employer can contact the Home Office to check an employee’s or potential employee’s immigration status if they cannot show their documents or online immigration status because they may have an outstanding appeal or review of an application with the Home Office, or an application decision pending. Employers must also check with the Home Office if the potential employee has a digital or non-digital Certificate of Application that says a check also has to be done with the Home Office to check their right to work. Use the Employer Checking Service.
Covid-19 right to work checks
Previous guidance has been updated confirming the end date for the temporary adjusted checks has now been deferred to 30 September 2022 (inclusive). Checks can currently be carried out over video calls, job applicants and existing workers can send scanned documents or a photo of documents for checks via email or a mobile app, rather than sending originals.
What happens if you do not check a job applicant’s right to work?
An employer may face 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 earnings; and review and possible revocation of a licence in the alcohol and late-night refreshment sector, the private hire sector and taxi sector.
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 immigration@stephens-scown.co.uk or call 01392 210700.