Important changes to Right to Work checks are being introduced from 6 April 2022 as part of the Home Office move to a digital solution to right to work checks in the future.
What is a Right to Work Check?
An employer is required to check whether all their potential employees have the right to work in the UK before employing them and if the employee’s right to work is limited, they must conduct a follow-up check prior to the employee’s immigration status expiring.
Provided the Right to Work check has been conducted in accordance with the Home Office guidance in place at the date of the Right to Work check, then the Employer will have a defence known as a “statutory excuse” against any Home Office enforcement action.
Employers do not need to undertake retrospective Right to Work checks of existing employees when the Home Office guidance changes.
Evidence that the Right to Work check was conducted should be retained for the length of the employment and for two years after the employment ends. The date on which the right to work check was made needs to be recorded.
How is a Right to Work check conducted?
From 6 April 2022, a Right to Work check must be undertaken in one of the following ways:
- A manual Right to Work check
- A Right to Work check using Identity Document Validation Technology (IDVT) via the services of an IDSP
- A Home Office online check
A manual right to work check
From 6th April 2022, employers cannot conduct manual Right to Work checks or adjusted manual checks on holders of biometric residence cards (BRC), biometric residence permits (BRP) or Frontier Worker Permit (FWP). Instead, the Home Office online service must be used. This is a significant change and shows a real push from the Home Office to move towards digitalisation.
Manual Right to Work checks can still be conducted on holders of British or Irish passports. If it is reasonably apparent that the document is false, then the statutory excuse will not be obtained.
Covid-19 adjusted Right to Work checks are still in place until 30th September 2022 for British and Irish nationals. This allows employers to conduct manual Right to Work checks without obtaining the original documents as job applicants can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals and checks can currently be carried out over video calls.
A Right to Work check using IDVT via the services of an IDSP
From 6th April 2022, employers can use Identity Document Validation Technology (IDVT) via the services of an Identity Service Provider (IDSP) to complete the digital identity verification element of right to work checks for British nationals and Irish citizens who hold a valid passport.
The Home Office state that they will provide a list of certified providers on gov.uk and while it is not mandatory to use a certified provider, it is recommended that the IDSP satisfy a Medium Level of Confidence.
An Employer cannot discriminate against someone who does not hold a valid passport and will have to offer a manual check in those circumstances.
Home Office Online Services
Home Office Online Right to Work Check
The job applicant will have to log on to the Home Office online system and select that they wish to share their immigration status which will generate a 9-digit code that when entered with the individual’s date of birth will allow the employer to access their immigration status.
Employers must access the Home Office online service for employers in order to obtain a statutory excuse. It will not be sufficient for employers to rely on the job applicant or employee’s records confirming their right to work. The Home Office will have an audit record of online checks conducted by employers using the service and as such, the Home Office will be aware of when the employer has conducted this service correctly. You will not establish a statutory excuse by viewing the job applicant or employee’s part of the service.
Home Office Employer Checking Service
Not all individuals’ immigration status can be checked using the Home Office online service and in those circumstances the employer should use the Home Office Employer Checking Service.
In particular cases, an Employer will need to contact the Home Office to obtain a Positive Verification Notice (PVN) to confirm that the applicant has the right to work. The PVN is valid for 6 months. These cases include when an applicant provides a Certificate of Application to the European Settlement Scheme, the applicant advises that they have an outstanding application with the Home Office or an ongoing appeal, or they provide an Application Registration Card with work permission.
What is Home Office enforcement action?
The Home Office have significant powers at their disposal if a business has been found to be employing someone illegally and does not have a statutory excuse. The sanctions include a civil penalty of up to £20, 000 per illegal worker, closure of a business, disqualification as a director, seizure of earning made as a result of illegal working, review and possible revocation of a licence in certain sectors and the business details published in the Home Office list of non-compliant employers. In serious cases, a criminal conviction could be pursued which carries a sentence of up to 5 years in prison and an unlimited fine.
From 1st July to 30th September 2021 across the UK, the Home Office issued 86 civil penalties with the average penalty issued being approximately £15,000. It is likely that with the removal of most of the restrictions in place due to Covid-19, the Home Office will be increasing their enforcement action.
It is therefore very important to have a robust system in place to ensure that you have conducted a right to work check in a manner that gives you a statutory excuse against a civil penalty, and that it is conducted in a way that does not discriminate or breach GDPR rules.
UK employers and individuals who require further information and advice in respect of these changes should contact our specialist Immigration team on 03330 430350 for further information and advice.
