New right to work check rules for UK employers

The Home Office has updated its right to work guidance for employers, introducing important new changes which will apply to all UK employers from 6 April 2022.  

Online right to work checks mandatory for some documents

Performing a compliant immigration right to work check before employment starts provides an employer with a statutory excuse (defence) to illegal working penalties, but for employers that also hold a sponsor licence, conducting valid right to work checks is an essential sponsor duty. 

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).

Until 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. Without an excuse, the employer risks 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. For employers holding a sponsor licence, failing to conduct the correct checks will also put them in breach of their sponsor duties, potentially risking the immigration status of their sponsored workers.

This new change is part of a drive towards a digitised immigration system. 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.

The change only applies to checks performed from 6 April – it is not necessary for employers to conduct retrospective online checks on employees with BRPs, BRCs or FWPs that were onboarded before that date.

Employers will still be permitted to conduct manual checks for other workers who do not hold these specific documents, for example British or Irish nationals relying on their passport for the right to work check (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
• be satisfied that any photograph on the online right to work check is of the individual presenting themselves for work
• retain on the 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?

Although the prevention of illegal working laws that apply to employers only cover those who are 'employed' under a contract of employment, the guidance states that there are 'compelling reasons' why companies should seek to know that all their workers have a right to work. Those reasons include potential damage to reputation, client relationships, regulatory standing and to insurance validity, so the Home Office recommends ensuring that anyone that works for you has the correct immigration status, even if you are not the direct employer. 

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.

Introduction of 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. The employer 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. We understand that fees for IDSP checks may range up to £90 per check depending on the IDSP and the number of checks the employer requires each year. The benefits of using ISDP will appeal most to organisations with a large headcount or for employers with teams that work remotely. 

Using an ISDP is optional. As it will involve extra cost and process, employers can 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 delayed the end date for the concession allowing adjusted right to work checks to 30 September 2022. The concession allows employers to review some original right to work documents over a video call, to avoid an in-person check. This has been welcomed by employers, especially those with remote and hybrid working arrangements. As most of the UK's other Coronavirus measures have been dropped, we do not expect that there will be a further extension beyond 30 September. 

The 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, all checks on those documents must be done using the online system.

If you would like to explore any of this further, please do get in touch with us.