Right to work checks: Adjusted checks to end on 30 September 2022

Background

All employers are required to carry out right to work checks on individuals before they commence work, in order to ensure that the individuals are not disqualified from carrying out the work in question by reason of their immigration status.

By completing a check which is compliant with the Home Office Employer’s Guide, a statutory defence will be obtained against civil penalties which can otherwise be imposed where the employer is found to be employing an illegal worker.

Covid-19 adjusted checks

The Covid-19 pandemic brought about a number of changes to the way people worked which made carrying out compliant checks on physical documents impractical. As such, on 30 March 2020 the Home Office introduced an adjusted right to work checking process, to account for the fact that many people were required to work from home during periods of national lockdown.

Since this date, employers have been able to carry out checks:

• over video calls rather than in person; and

• on scanned/photos of documents received via email or a mobile app rather than on originals only.

Where prospective or existing employees could not provide any of the accepted documents, employers have been required to continue using the Home Office’s Employer Checking Service which is available online. This process will remain unchanged.

The use of these adjusted measures will be permitted until 30 September 2022.

Changes to the checking process from 1 October 2022

From 1 October 2022, employers will no longer be able to carry out adjusted right to work checks.

In practice, this means that employers will be required to carry out checks in one of the following ways, depending on the type of immigration permission the individual has:

1. A manual right to work check (for British and Irish nationals only); or
2. A right to work check using Identity Document Validation Technology via the services of an Identity Service Provider (for British and Irish nationals with a valid passport only); or
3. A Home Office online right to work check for individuals with biometric residence permits, biometric residence cards, frontier worker permits or e-visas (including those granted status under the EU Settlement Scheme). In order to conduct the online checks, employers will need a “share code” from the individual, as well as their date of birth.

As stated above, where an individual is not able to present acceptable evidence of their right to work because an application to the Home Office has been made but is outstanding, employers should continue to use the Employer Checking Service to obtain a positive verification notice.

Significantly, where carrying out manual right to work checks from 1 October 2022, employers will be required to obtain original documents from the Home Office’s list of acceptable documents. These documents must be checked in the presence of the individual, either in-person or via a video call. The fact that it will continue to be possible to verify the validity of documents via video call will be welcome, given that remote or hybrid working is increasingly common for many organisations. However this may still cause challenges where individuals working remotely are required to present their passport and are reluctant to do so by post.

Employers must then make and retain a clear electronic or hard copy of the document and make a record of the date on which the check was performed in the prescribed manner.

Will retrospective or follow up checks be required?

The Home Office has confirmed that employers will not be required to carry out retrospective right to work checks on those employees who had an adjusted check carried out between 30 March 2020 and 30 September 2022. A statutory defence will be maintained against civil penalties provided the check was carried out in line with the prescribed guidance on adjusted checks at the relevant time. However, organisations whose processes did not keep up with the evolving Home Office requirements would be well advised to undertake an audit and carry out checks retrospectively if there are concerns (while this will not afford the statutory excuse, it will provide an opportunity to identify any employees who may be of concern and deal with them appropriately).

Where an individual has a time-limited right to work, follow on checks will still be required before the expiry of their current immigration permission.

How should employers respond to these changes?

• Steps should be taken to ensure that the people within your business responsible for carrying out right to work checks are aware of what is required of them in order to complete a compliant check from 1 October 2022.

• There have been a number of changes to the right to work checking process since March 2020, including changes to the way checks are carried out on EEA citizens following Brexit, and the introduction of mandatory online checks for certain individuals from 6 April 2022. It is therefore essential that the relevant people in your business have up-to-date knowledge of the current checking requirements, to ensure the company is complying with its legal obligations to prevent illegal working. Training for all those involved in the process of checking right to work is highly recommended.

• Right to work policies and procedures are likely to become out of date on 1 October 2022, and should be updated in line with the 1 October changes. Those which haven’t been kept up to date with earlier changes since Brexit would particularly benefit from a refresh.

• Where right to work processes were lax during the pandemic, this is a good opportunity to carry out audits and retrospective checks.

• Where an organisation has a sponsor licence to sponsor migrant workers (or is interested in obtaining one), it is a condition of being granted and retaining the licence that immigration (and general employment) obligations are fully complied with, therefore there is even greater need for vigilance in this area to avoid the licence being revoked by the Home Office.

• Where the business no longer wishes to carry out manual right to work checks itself, and is considering using an Identity Service Provider for checks on British and Irish nationals, efforts should be made to find a suitable provider to engage and enter into an appropriate commercial arrangement with.

How we can help

The Walker Morris Business Immigration team is available to assist with any queries you may have in light of the recent or upcoming changes to right to work checks, including reviewing policies and procedures, delivering training to staff and assisting with audits. If you require assistance on any of the issues raised in this article, please contact Shabana Muneer.

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