Right-to-work checks have changed – what do employers need to know?
June 10, 2022
If you’re employing workers from outside the UK and Ireland, you need to be aware of changes as to how you undertake right-to-work checks. Failure to carry out these checks correctly can lead to severe sanctions for you and your organisation.
With effect from April 6, employers are no longer to accept physical documents from non-UK/Irish nationals who hold either biometric residence cards, biometric residence permits or frontier work permits.
These prospective employees will only be able to demonstrate their right-to-work through the Home Office’s online checking service: www.gov.uk/employee-immigration-employment-status
For any prospective employees who do not have these documents, then employers are still able to undertake manual right-to-work checks of documents (or, until September 30, 2022, undertake COVID-19 adjusted checks).
To undertake an online check, employers need to be given a ‘share code’ and the prospective employee’s date of birth, by the prospective employee.
Employers are then able to access the employer section of the online checking service in order to complete the check and, importantly, establish a statutory excuse against negligently employing illegal workers.
Checks for British and Irish citizens
Legislation is now in force to enable employers to use Identity Service Providers (IDSPs) to carry out right-to-work checks on their behalf for British and Irish citizens under a digital identity document validation technology (IDVT).
Using an IDSP will enable employers to obtain a statutory excuse against civil penalties, provided the IDSP undertakes checks in line with prescribed guidance and that the employer is satisfied the IDVT check matches the prospective employee’s details and is undertaken in line with prescribed guidance.
Employers must also satisfy themselves that the photograph and biographic details relating to the prospective employee are consistent with the individual presenting themselves for work.
A list of accredited IDSTs and a framework for IDVT is being developed, with more detail expected in due course.
There will be a fee (amount to be confirmed) for employers who choose to use an IDSP to undertake IDVT on their behalf. Employers will not currently be mandated to use this system and therefore will retain the ability to carry out manual right-to-work checks on British and Irish citizens.
Temporary COVID-19 adjusted right–to–work checks
Temporary adjusted right–to–work checks, brought in due to the COVID-19 pandemic, will remain in place until September 30, 2022. It is hoped this further (and expected final) delay of the temporary checks will give employers the chance to adapt to the digitisation process for non-UK migrants.
It will also enable a smooth transition for those employers wishing to use the IDVT scheme, using IDSPs, once these schemes are established.
Consequences of non-compliance
There are severe sanctions if right-to-work checks aren’t done correctly, and your organisation employs illegal workers.
These sanctions can apply both to the organisation as a whole and to individuals involved in the recruitment of illegal workers, whether this is done knowingly or negligently, and can include imprisonment and unlimited fines.
By undertaking right-to-work checks in line with prescribed guidance before a prospective employee starts work with you, you ensure your organisation has a statutory excuse against negligently employing an illegal worker.
Employers should be amending policies and procedures to take account of the new and impending changes and ensuring everyone involved in recruitment and undertaking right-to-work checks (including any agencies an employer may use) has appropriate training in the new regime.
Understanding your options
The majority of skilled migrant workers now expect to be sponsored by their employer to enable them to work in the UK.
For many employers, having the ability to sponsor skilled workers gives them the best opportunity to secure the recruitment of talented prospective employees.
We can advise on all aspects of business immigration, the sponsor licence application and regime, and support you through the sponsorship process.
With our help, you can also understand whether any alternative options exist to enable you to employ your prospective employee without sponsorship.
For more information and help in this area, please contact Amy Sergison [pictured], partner in Muckle LLP’s employment team, on 0191 211 7995 or via email at [email protected]