Right to work checks: updates for UK employers

On 1 March 2023, The Home Office updated its guidance to employers on right to work checks. 

Right to work checks – what are they?

All UK employers have a legal obligation to comply with the prevention of illegal working legislation. This means basic checks are required for all UK-based employees to verify they have the requisite permission to perform the required work. 

By carrying out right to work document checks in the correct manner, employers should be able to rely on a statutory defence against allegations of compliance breaches, where they can demonstrate that they have taken consistent and compliant measures to ensure that they are only hiring individuals with permission to work in the UK. 

Employers can conduct their right to work checks in person or through compliant processes through an Identity Service Provider (IDSP). The type of check will depend on different factors, such as the worker's nationality. 

There are four ways in which employers can conduct compliant document checks:

1. manual right to work checks for employees of all nationalities
2. digital right to work checks for British and Irish citizens
3. online right to work checks for British and non-Irish citizens
4. Employer Checking Service for individuals who have either an outstanding application, administrative review or appeal, or where their immigration status requires verification by the Home Office.  

It is important to note that all right to work processes should be compliant and implemented consistently and correctly. 

What are the consequences of non-compliance?

If an employer is found to be employing someone illegally and they have not carried out the prescribed checks, they may face sanctions including a civil penalty of up to £20,000 per illegal worker, or criminal penalties (imprisonment and/or unlimited fines). 

Updates

On 1 March 2023, The Home Office updated its guidance to employers on right to work checks. It is essential that employers are aware of the changes to ensure they remain complaint and avoid civil penalties or criminal liability. 

Key updates in the guidance to employers on right to work checks include:

• clarification for employers on the use of IDVTs IDSPs to support the use of 'reuseable' identities for checks involving the use of IDSPs;
• confirmation that the COVID-19 temporary adjusted checks which were introduced on 30 March 2020, ended on 30 September 2022. Retrospective checks on employees who had a COVID-19 adjusted check between this period do not need to be carried out;
• changes to enable some individuals with an outstanding, in-time application for permission to stay in the UK, or an appeal, or Administrative Review to prove their right to work using the Home Office online checking service. 
• confirmation that Re-Admission to the UK endorsements are an acceptable document for the purposes of right to work checks;
• information on sponsored work and student categories; and 
• instructions on short-dated BRPs.

For further information as to how we can help please contact our UK Immigration team, or your usual Withers contact, call +44 20 7597 6000 or email enquiries.uk@withersworldwide.com