Update to right to work checks March 2022 – Advice for employers in the UK
Author: Judit Adorjan
The Home Office have recently updated ‘An employer’s guide to right to work checks’ which reflects changes due to come into effect on 6 April 2022.
This update includes important changes:
- To the way Biometric Residence Card, Biometric Residence Permit (BRC/BRPs) and Frontier Worker Permit (FWP)holders prove their right to work#
- to the list of acceptable documents (Annex A)
- information on sponsored work and student categories (Annex C)
- and further guidance to enable employers to use Identity Service Providers (IDSPs) to carry out digital identity verification as part of a right to work check (Annex D)
- extension to the COVID-19 temporary adjusted right to work checks until 30 September 2022 (Annex E).
Why are right to work checks required?
Employers in the UK have a responsibility to prevent illegal working.
Conducting right to work checks before employing someone ensures that the individual is not disqualified from carrying out the work in question due to their immigration status.
If checks are conducted in the manner set out in the latest guide and code of practice the organisation will not be liable for a civil penalty in the event, they are found to have employed an illegal worker.
The employer will not establish a statutory excuse if the check is performed by a third party such as a recruitment agency or the professional adviser, as the check must be carried out by the employer who the contract of employment is with.
Why prevent illegal working?
Illegal working is not only a key driver of illegal migration but it also leaves people vulnerable to exploitation, undercuts compliant businesses, negatively impacts on the wages of lawful workers and is linked to other labour market abuses such as tax evasion, breach of national minimum wage and exploitative working conditions, such as modern slavery.
How to conduct a right to work check?
There are two types of right to work checks: a manual document-based check and an online check.
Organisations can also use the Employer Checking Service for individuals with an outstanding application, administrative review or appeal or if their immigration status requires verification by the Home Office. If the person has a right to work, the Employer Checking Service will send the employer a Positive Verification Notice which provides a statutory excuse for 6 months from the date in the notice.
Manual document-based right to work check
Biometric Residence Card, Biometric Residence Permit (BRC/BRPs) and Frontier Worker Permit (FWP) have been removed from the lists of acceptable documents used to conduct right to work check.
From 6 April 2022 BRC, BRP and FWP holders must evidence their right to work using the Home Office online service only.
Retrospective checks will not be required on biometric card holders who, before 6 April 2022, used their physical card to demonstrate their right to work.
Employers will maintain a statutory excuse against a civil penalty if the initial checks were undertaken in line with the guidance applicable at the time the check was undertaken.
British and Irish citizens can continue to use manual checks for now.
Those granted permission to enter the UK for more than 6 months are issued with a vignette sticker in their passport. A manual right to work check can be conducted provided the vignette is valid at the time of the check. A follow up manual/online check will be required once the BRP has been collected for the statutory excuse to continue.
Where a manual check is acceptable the employer must:
- Obtain documents from either List A or B of acceptable documents at Annex A
- Check that the documents are genuine and the person presenting them is the prospective employee and rightful holder and allowed to do the type of work offered
- Make a clear copy of each document in a format which cannot be altered, record the date he right to work check has been conducted and retain the copy securely.
Online right to work check
Employers can do an online check using the service called ‘View a job applicant’s right to work’
The online service supports checks in respect of those who hold:
- A biometric residence permit
- A biometric residence card
- A status issued under the EU Settlement Scheme
- A digital Certificate of Application to the EU Settlement Scheme issued on or before 30 June 2021
- Status issued under the points-based immigration system
- British National Overseas (BNO) vis, or
- Frontier worker permit.
The individual will first need to view their own Home Office right to work record. They can then share this information with the employer by providing a ‘share code’, which when entered along with the individual’s date of birth, enables the employer to access the information. The share code is valid for 30 days from the point it has been issued and can be used as many times as needed within that time.
Organisations must use the employer part of the service to obtain a statutory excuse. If they view the migrant part of the service, they will not establish a statutory excuse.
An online right to work check is a three-step process.
Once the employer has viewed the job applicant’s right to work, they must also check in the presence of the individual (in person or via live video link) that the photograph on the online right to work check is of the person presenting themselves to work. Evidence must be retained of the online right to work check include the profile page (person’s photo and date on which the check was conducted) confirming the individual’s right to work.
Follow up checks are required for those who have a time-limited permission to work in the UK. This should occur when their previous permission comes to an end.
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