UK Right to Work: A Checklist for Employers
26 September 2022
From 1 October 2022, UK Right to Work checks will change. There will now be only three main methods of checking an individual’s right to work in the UK. These will consist of:
- Manual check of original documents
- Online checks; and
- The use of an Identity Service Provider.
Whilst temporary changes were made to the right work check requirements on 30 March 2022 in response to the COVID-19 pandemic, which allowed checks to be carried out remotely over video call and for scans or photographs of documents to be checked as opposed to original documents, this will be coming to an end on 30 September 2022.
What does this mean for employers?
From 1 October 2022, the type of check an employer carries out will be dependant on the candidate’s nationality or immigration status. Provided employers have complied with the appropriate right to work checks, they are said to have a “statutory excuse” against liability for a civil penalty for employing a worker illegally, but only if they follow the appropriate procedures and any of these routes identified above. Therefore it is even more important to ensure that right to work checks are carried out correctly and in line with Government guidance.
Manual right to work checks (for valid British and Irish passport holders)
- When conducting manual right to work checks, the Home Office requires employers to obtain original documents from either List A or B of acceptable documents. The List A documents include: the candidate’s passport, immigration status document, birth or adoption certificate or certificate of naturalisation in the UK; whilst List B documents are those that show the applicant’s application for leave to remain under immigration rules. The full lists are available here.
- Once the necessary documentation has been obtained, employers then need to check that these documents are genuine and that the prospective employee is the person providing them.
- Employers need to check that photographs are consistent across all documents and match the person’s appearance, that they have not been tampered with, that any differences in names across documents can be explained (for example, divorce or marriage), and that expiry dates for permission to be in the UK have not passed.
- Employers are then required to make copies of these documents in a format that cannot be manually altered. The dates of when these copes were made must also be retained securely elsewhere.
Digital right to work checks
The Identity Service Provider (IDSP) checks are intended to be carried out by employers for all of those who are not eligible for the online checks referred to above, i.e. those with valid British and Irish passport holders. This is an alternative to the manual checks referred to above.
When carrying out these right to work checks remotely employers will need to do so through a IDSP. The UK government continues to update a list of providers that are government certified to be able to provide this service, and this list can be found here. Whilst it is not mandatory to use the Government certified Identity Document Validation Technology (IDVT) providers, doing so will provide assurance that the check meets relevant scheme guidance and standards and on this basis we would recommend that employers do use one of the government certified providers. The service provider will, for a fee, act on behalf of the employer to carry out the right to work checks.
An employer will be excused from civil penalty if, before the commencement of an employee’s employment, it:
- Obtains from an IDVT identity service provider an IDVT identity check which shows that there exists in relation to the employee a relevant IDVT document.
- Receives from the IDVT identity service provider a clear copy of the “IDVT identity check”, and the document checked, in a format which cannot be subsequently altered.
- Reasonably believes that the IDVT identity service provider has complied with the following requirements:
- that it has taken all reasonable steps to check the validity of the document;
- that it has recorded in a format that cannot be subsequently altered the date on which the check was carried out;
- that it is satisfied that the photograph is of the employee;
- that it is satisfied that the date of birth is consistent with the appearance of the employee;
- that it has taken all reasonable steps to verify that the employee is the rightful holder of the document;
- that where the document is a passport which is not in the form of a card, it has retained a clear copy of any page of that document containing the holder’s personal details including nationality, their photograph and the date of expiry in a format which cannot be subsequently altered
- that where the document is a travel document in the form of a card, it has retained a clear copy of the whole of that document in a format which cannot be subsequently altered.
- Is satisfied that the photograph of the individual contained in the IDVT identity check received by the employer is of the employee;
- Retains a clear copy of the IDVT identity check, and the document checked, for a period of not less than two years after their employment has come to an end.
Online right to work checks
Where an applicant is from outside of the UK, the candidate may have an immigration status that can be checked online, such as an eVisa (for example, EU Settled Status, EU Pre-settled Status or those who applied for UK immigration permission using the UK Immigration ID Check app), Biometric Residence Card (BRC), Biometric Residence Permit (BRP), or Frontier Work Permit (FWP). Employers can carry out these online right to work check’s by using the Government’s online service.
To carry out an online right to work check, employers need the applicant’s date of birth and a right to work share code, which employees can obtain from the Government website by inputting their immigration details.
The online right to work check will include a photograph of the applicant, and as detailed above, employers must check that these documents match the person’s appearance. Employers are also required to retain clear copies of the response given in the online right to work check and must store this securely either electronically or as a hard copy. This must be stored for the duration of the individuals employment and for two years after.
How can employers ensure they are compliant?
- Carry out “right to work” checks on all prospective employees before employment commences;
- Conduct follow-up checks on employees who have a time-limited permission to live and work in the UK;
- Retain records of all checks carried out;
- Do not employ anyone you know or have reasonable cause to believe is an illegal worker.
Employers who are found to be in breach of these legal obligations could face a civil penalty of up to £20,000 per non-compliant worker, lose their ability to sponsor work-visa applications for foreign nationals, and could face criminal conviction.
We hope the above is of assistance but if you have any queries please do not hesitate to contact our Employment team on Employment@redkitelaw.co.uk.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.