How to check for right to work under the new laws
Visa holders must now have a digital right to work, without which employers could face hefty fines. Joanne Hennessy explains the process
The problem
Changes to the right to work checking process were made on 6 April. These changes solidify the Home Office's intention to create a system where the majority of visa holders evidence their right to work via a digital immigration status. In these times of increased remote and hybrid working, many employers will welcome these changes.
Beware! What the Home Office deems a compliant right to work check has continued to evolve over time, including changes in 2021 to the checks required against EEA nationals post-Brexit.
It is crucial that employers carry out and record compliant right to work checks against all employees to ensure they have the right to work and to obtain a ‘statutory excuse' for each employee. Without a statutory excuse, if illegal working occurs, the employer will be liable for a civil penalty of up to £20,000 per illegal worker. Getting these checks wrong can also have significant reputational and operational repercussions if illegal working occurs.
It is crucial employers are carrying out and recording compliant right to work checks
The law
Employers must use the Home Office's online service to conduct right to work checks against those who hold a biometric residence permit, biometric residence card or a frontier worker permit. This must be done via a specific portal via gov.uk and share code process.
Employers will no longer be able to carry out manual checks against these documents and the biometric residence cards will be removed from the list of acceptable documents for a manual right to work check. If an employer was to carry out a manual check against a biometric residence card, they would not obtain a statutory excuse from a civil penalty if it later transpired the employee did not have the right to work in the UK.
If a biometric residence card was used to demonstrate right to work before 6 April, retrospective checks will not be required and employers will maintain a statutory excuse as long as the initial check was made in line with the guidance that applied at the time.
Repeat checks from 6 April will need to comply with the new rules.
Identification technology
Employers can now make use of a certified Identity Service Provider (IDSP) to carry out digital checks on British and Irish nationals who hold a valid passport (including Irish passport cards). There will be a charge for employers to use this service, although the exact amount is yet to be confirmed. The full process to be followed is detailed in the Right to Work guidance. It remains the responsibility of the employer to:
- Obtain the Identification Document Validation Technology (IDVT) check from a certified IDSP;
- Check the IDSP has performed all checks in line with official Home Office guidance; and
- Satisfy themselves that the person presenting themselves for work is the same person subject to the check.
Employers will still, therefore, need to conduct their own robust check of the documentation. It is not mandatory to make use of this service and employers can instead make use of the manual checking process (or the Covid-19 right to work concession until 30 September 2022).
To-do checklist
- Review and update your existing right to work policies and checklists to ensure they reflect the above changes and other recent developments in right to work requirements.
- Train staff on the latest requirements.
- Plan for upcoming repeat checks to ensure a compliant process is followed.
- Familiarise yourself with the new IDSP process and consider whether it would be of use to you.
- Diarise the end of the Covid-19 checking concession and communicate this internally to those completing checks.
*Joanne Hennessy is a partner at law firm TLT
joanne.hennessy@tltsolicitors.com*
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