Right to Work Checks: changes for UK employers

Article 29 March 2022 Experience: Employment
Immigration

The Home Office has announced changes to employer right to work checks, which will come into effect on 6 April 2022.

Previously, employers could check their employee’s right to work via two main methods:

  • Online right to work checks for individuals with BRP cards/status under the EU Settlement Scheme, where an employer would look up the employee on the Home Office immigration database.
  • Manual right to work checks, where the employer would inspect the employee’s original ID and verify this in person with the individual/via video call (additionally, during the pandemic adjusted right to work checks were introduced where an employer could inspect a scan or photo of the employee’s ID rather than the original documents. These adjusted right to work checks will end on 30 September 2022).

Changes

From 6 April 2022 this process will change in two key ways:

1. Checks for all nationals (other than British and Irish nationals)

Employers will no longer be able to accept physical ID when conducting right to work checks for individuals who hold Biometric Residence Permits (“BRP”), Biometric Residence Cards (“BRC”) or Frontier Worker Permits (“FWP”). Instead, it will be mandatory to use the Home Office’s online data base system.

For migrant workers who do not hold a BRP, BRC or FWP and have physical documents to evidence their right to work in the UK (for example via a vignette or stamp in their passport), electronic checks will not be possible until such time as their status is renewed (and they are moved to the new electronic system). Employers will need to continue carrying out manual checks for these individuals (in addition the “adjusted right to work checks” will end on 30 September 2022).

2. Checks for British and Irish nationals

A new system of digital checks is being introduced as an alternative to the traditional manual system for British and Irish nationals. These checks are different to the online data-base method. Digital checks will require employees to submit scans of their personal documents rather than originals. The system will use “Identity Document Validation Technology”.

If employers choose to use IDVT they will need to select a third party to operate this system. A list of accredited providers will be available on the Home Office website but it will not be mandatory to use an accredited provider. There will be a cost associated with this method.

Using IDVT is optional. As it comes at an extra cost, employers can continue to manually check British and Irish nationals’ passports when completing their right to work checks after 6 April 2022.

Retrospective checks

The Home Office has clarified that where a right to work check for a foreign national has been conducted on or before April 5, 2022 based on a physical biometric card, the check will continue to be valid and a retrospective check will not be required.

Additional guidance

A Code of Practice advising employers on how to avoid unlawful discrimination while carrying out right to work changes will also be published on 6 April 2022. It is advisable that employers read this in light of the upcoming changes.

Impact on employers

Employers should update internal right to work check policies and procedures in light of the upcoming changes. It is also advisable to provide staff refresher training to ensure that all those conducting right to work checks are familiar with the new requirements.

While retrospective checks are not required on individuals who have established their right to work using physical biometric cards, employers will need to conduct follow on checks before the expiry of a biometric card if the Home Office online service was not used for the initial right to work check.

If employees have TUPE transferred, new employers are required to carry out checks in line with the updated guidance within 60 days, regardless of the method upon which checks were carried out by the previous employer.

Penalties for non-compliance

Non-compliance with the new rules will continue to result in the issuing of penalties. Employers who fail to carry out the checks appropriately face civil penalties of up to £20,000 per illegal worker. Criminal penalties (unlimited fines and up to five years in prison), and the loss of any sponsor licences are also potential repercussions.

We are available to offer our clients UK immigration compliance advice in this regard.

Authors