New right to work check rules for UK employers

Online right to work checks now mandatory for some documents

From 6 April 2022, all UK employers must conduct an online right to work check when onboarding or checking right to work status of employees who hold the following documents:

• Biometric Residence Permit (BRP) cards, which are issued to individuals holding a visa of six months or more.
• Biometric Residence Cards (BRC), which are issued to non-EEA family members of an EEA citizens.
• Frontier Worker Permits (FWP).

Up to that date, as well as an online check, employers can continue to conduct manual checks by either:

• an in-person check of the original BRP, BRC or FWP in the presence of the document holder, or
• a virtual check on a video call if using the “adjusted” right to work check process (this concession started in 2020 as a measure to limit the spread of COVID-19 and has been extended until 30 September 2022, as explained below).

From 6 April 2022 employers who continue to undertake manual checks on BRPs, BRCs or FWPs (either in-person or remotely on a video call) will not be provided with a statutory excuse against illegal working penalties if the employee is found not to have permission to work. This exposes employers to a risk of a civil penalty of up to £20,000, or criminal sanctions where the employer ‘knowingly’ employed a worker that did not have the correct permission.

If you hold a sponsor licence, failing to conduct the correct checks will also put you in breach of your sponsor duties, potentially risking the immigration status of  your sponsored workers.

This new change is part of a push towards a digitised immigration system. Taylor Wessing writes “Employers are becoming used to verifying right to work online rather than using traditional in-person checks, especially for those granted status under the EU Settlement Scheme. As more processes become digital, some sponsored workers that have given biometrics in a previous application will now be able to use the new ID check app and so will receive an eVisa (digital status rather than a BRP) and employers will only be able to conduct online checks for them too”.

Employers will still be permitted to conduct manualright to work checks e.g. of passports for other workers who do not hold these specific documents (as it is not currently possible for the employer to conduct an online check on their status).

Conducting an online right to work check

To conduct an online right to work check, employers should:

• ask the individual for a share code, that they can generate through the prove your right to work to an employer page on GOV.UK
• use the Home Office online right to work checking service (the view a job applicant’s right to work details page on GOV.UK) in respect of an individual and only employ the person, or continue to employ an existing employee, if the online check confirms they are entitled to do the work in question
• have ensured that any photograph on the online right to work check is of the individual presenting themselves for work
• retain on the workers personnel file a clear copy of the response provided by the online right to work check (storing that response securely, electronically or in hardcopy) for the duration of employment and for two years afterwards.

Whose right to work status should you check?

Apply this requirement to all your workers not just employees under a contract of employment.

In some cases, for example where the worker is employed by a third party, that may mean imposing a contractual condition in a commercial contract or requesting copies of right to work documents from the third party employer, rather than conducting the full check yourself.

New Identity Service Providers (IDSPs) for right to work checks

Currently, employers do not obtain a statutory excuse if they outsource the right to work check process to a third party. From 6 April 2022, employers may use a third party ISDP to verify a British or Irish national’s right to work in the UK – although that option won’t be available for other categories of worker.  Employers must ensure the ISDP is certified to the required standard and provide appropriate training and guidance to their staff, for example on the information they must obtain from an ISDP to confirm verification of the employee’s identity.

The list of certified (vetted) ISDPs has not yet been published, so the scheme may not be operational by 6 April.

Using an ISDP is optional. As it will involve extra cost (typically around £90 per check) and process, so HRO typically recommends it’s clients continue to manually check British and Irish nationals’ passports when completing their right to work checks after 6 April 2022.

Deadline for virtual right to work checks extended again

The Home Office has also delayed the end date for the concession allowing adjusted right to work checks to be performed over a video call until 30 September 2022. This is no doubt a relief to many of you who have remote and hybrid working arrangements.    Please note however, ehe extension of this concession allowing virtual checks in some cases does not amend the new rule mentioned above for BRC, BRP and FWP holders. As manual checks are no longer permitted from 6 April 2022, all checks on those documents must be done using the online system.