Changes to Right to Work Checks from 1 October 2022

Summary

Temporary adjustments to right to work checks were introduced on 30 March 2020 in response to the onset of the Covid-19 pandemic which made it considerably more difficult to conduct in person checks.

The adjustments essentially made it permissible to check scans or photographs of an individual’s identification documents rather than physical, original documents which meant that checks could be done via video call rather than face to face. In addition, from 6 April 2022, employers have been able to check British and Irish nationals’ right to work using Identification Validation Technology (“IDVT”).

The temporary adjustments will end on 30 September 2022 and from 1 October 2022, employers must conduct right to work checks using one of three prescribed methods going forward. The three permitted methods are as follows:

1. 1. an online right to work check via the Home Office (mandatory for Biometric Residence Permits – see below);
   2. a manual right to work check; or
   3. a digital check using an Identity Service Provider (“IDSP”).

Right to work – what needs to be checked and when?

1. Right to work checks need to be carried out on all prospective employees, whatever their nationality before employment commences. Employing an illegal worker can lead to civil penalties of £20,000 per illegal migrant worker, and criminal sanctions where an employer has reasonable cause to believe an employee does not have the right to work in the UK. However, employers who have conducted and recorded compliant right to work checks have a statutory excuse which is a defence to a civil penalty.
2. To establish the statutory excuse, a compliant right to work check must be completed and recorded before the employment relationship starts – i.e. not upon an induction on the first day.
3. An individual’s right to work may be continuous (for example if they are a British citizen or have indefinite leave to remain) or may be subject to a time limit (if the employee has limited leave to remain). The employer must diarise to check the employee’s right to work status again long in advance before the expiry of the time limit.

Right to work checks from 1 October 2022

1. From 1 October 2022, right to work checks can be done using one of the three methods outlined above. The appropriate method to use depends on the immigration status of the individual and the documents they hold.
2. From 6 April 2022, online right to work checks became mandatory for holders of eVisas, Biometric Residence Permits, Biometric Residence Cards and Frontier Worker Permits. Therefore, from 1 October 2022, the position remains that such individuals’ right to work should be checked using the Home Office’s online checking service. A manual check is not compliant. The employer must request a share code from the prospective employee and use this to check their right to work using the online service. The employer can then check whether they are permitted to do the work being offered and whether there is a time limit on their right to do that work. If there is, the employer should diarise to check again before the time limit expires.
3. For individuals who do not fall within the scope of an online check (e.g. British and Irish passport holders), employers must either carry out a manual right to work check or use an IDSP. Either method is acceptable.
4. A manual right to work check will involve obtaining the individual’s original identification documents and meeting them to check the validity of the documents. Employers should record copies of the qualifying documents and keep a record of the date of the check.
5. Digital checks can also be done using an IDSP that offers IDVT. The government has provided a list of certified IDSPs here. Employers will still ultimately be responsible for ensuring the IDSP is properly certified and that the right to work check has been conducted properly

What should employers be doing now?

1. The temporary adjustments may be ending this week but employers do not need to be concerned about the checks completed under the relaxed pandemic measures between 30 March 2020 and 30 September 2022, provided they were compliant under the adjusted regime – the changes to right to work checks on 1 October 2022 will not be retroactive, they impact on new starters or employees who have visa extension applications.
2. Employers should consider providing training on the upcoming changes to staff who undertake right to work checks to ensure they are up to speed and understand the new requirements.
3. Employers should also look at their workforce to decide on the best process for right to work checks. For example, using an IDSP is likely to incur a significant cost in aggregate but may nonetheless be the preferred method to conduct checks efficiently.

Posted: 30 September 2022