Business Immigration: The Importance of Right to Work Checks
Right to Work Checks: An Employer's Guide
A Home Office press release, published on 16 June 2023, reported that they had deployed over 300 immigration officers on over 150 enforcement visits in one day in a bid to crack down on illegal working in the UK. Immigration Enforcement officers made arrests of 105 foreign nationals found working without the required right, during 159 illegal working visits (a link to the full press release is included here). It is clear that the Government intends to increase compliance checks and prevent illegal working in the UK which is in line with their five-point plan to tackle illegal migration which was unveiled earlier this year. Now, more than ever, it is important that you are protecting your business and avoiding unnecessary risks by conducting the prescribed right to work checks.
Why should you carry out right to work checks?
Employers in the UK have an obligation upon them to prevent illegal working in the UK and as such, right to work checks, carried out in line with the guidance from the Home Office must be completed. Carried out correctly, a right to work check will create a statutory excuse to a civil penalty in the event that an employer employs an illegal worker. Failure to carry out right to work checks can have damming consequences and result in serious reputational damage and significant financial sanctions to businesses.
You should ensure that when you are onboarding employees you are conducting diligent right to work checks. Even if an employment contract requires employees to warrant, they have the right to work in the UK, as an employer you are still expected to conduct these checks. Employers should also be wary that once an initial right to work check has been concluded, this may not have fulfilled their legal obligations where workers are permitted to work in the UK for a limited time. Likewise, you may assume that you are able to outsource your right to work checks to a third party, however care must be taken to ensure right to work checks are being completed correctly.
The timing of when the checks are carried out and the way they are recorded is vital to ensuring the right to work check is done correctly.
Consequences
Employers who fail to comply with right to work checks could be hit with civil penalty (fine) of up to £20,000 for each illegal worker. Further to this, if the employer knows, or ought to know, that the individual does not have permission to work, an employer can also face criminal sanctions, namely, imprisonment for 5 years and ordered to pay an unlimited fine.
If your business has successfully procured a sponsorship licence this may also be suspended and revoked if a civil penalty is issued. Having a sponsorship licence revoked will result in the employment of all employees who received sponsorship to be terminated.
What to do
Employers should carry out one of the following checks before employment begins:
✔️ Conduct an in-person ‘manual’ check of original documents;
✔️ Use the Home Office Online Checking service; or
✔️ Use an Identification Document Validation Technology (IDVT) identity check.
During the Coronavirus (Covid-19) pandemic, the Home Office temporarily permitted employers to conduct manual right to work checks remotely. This enabled employers to verify employee’s documentation and identity through video call. The Covid-19 temporary adjusted checks ended on 30 September 2022 and employers must revert to checking physical documents when conducting a manual right to work check.
What is a Manual Check?
A Manual Check is the most well-known form of right to work check. There are various acceptable documents set out in List A and List B of the Home Office, which you must obtain for the manual check.
The process of performing a manual check is as follows:
Meet the individual.
Check the original documents in person with the individual present.
Make and retain copies of original documents, record the date the check was completed.
When should we use the Home Office Online Service?
Since 6 April 2022, a Home Office online right to work check can be carried out for various people, subject to what immigration documentation they have been issued i.e. a Biometric Residence Permit (BRP), Biometric Residence Card (BRC), EU Settlement or Pre-Settlement Status, or Frontier Worker Permit (FWP).
The online checking service is fairly simple to use and requires you to take the following steps:-
The foreign employee logs into their UK and Visa Immigration account and provides you with a share code.
You enter the code onto the Gov website and enter the code and employee’s date of birth. The employee will then confirm they have shared the code with you, and you should be able to see their right to work. You are then required to check that the employee has the right to work under their issued visa and their photo matches the individual in question.
Then you must securely retain the evidence in hard or electronic copy.
It will not be possible to conduct this check in all circumstances given that not every person will have an immigration status that can be checked online.
What is Identification Document Validation Technology (IDVT)?
The Identification Document Validation Technology was introduced as part of the Home Office’s plan to digitalise the UK Visa and Immigration services. Since 6 April 2020 employers have been granted the option to use IDVT by engaging the services of a third party – an approved Identity Service Provider (IDSP). The IDSP will conduct a digital check for British and Irish citizens who hold a valid passport – this also includes valid Irish passport cards.
Even though you are essentially outsourcing your right to work check, you will still need to manually check that the individual in the passport is the individual you are hiring. You will also need to obtain the permission of the employee before undergoing a right to work check through an IDSP and securely retain a clear copy of the IDVT identity check output, for the duration of the employment and for two years after the employment has come to an end.
If you choose to engage the services of an IDSP, you will only obtain a statutory excuse if the IDSP complies with the guidelines of the Home Office. From a commercial perspective it would be wise to have the IDSP provide a warranty in their agreement with your business to comply with the guidelines.
A list of certified IDSP’s can be found here.
When do I need to use the Employer Checking Service?
You can use this service to ask the Home Office to check an employee’s or a potential employee’s immigration status if for whatever reason, they are unable to show their documents or online immigration status. You will only need to use this service if you cannot check the applicant’s right to work online using their share code or check the applicant’s original documents. It can take up to 5 working days (subject to delays) to receive a response.
How can I get support?
We understand that right to work checks can be tricky and damaging both financially and reputationally if done incorrectly. We can be on hand to assist with the entire process or for certain parts, as and when support is needed.
This article does not amount to legal advice. For more information on right to work checks, hiring foreign workers, procuring a sponsorship licence or any of the other immigration services we offer, visit our business immigration page on our website or schedule a discovery call, especially if you require specific advice!
Book a call with one of our Employment Law Solicitor today ↓
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