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Immigration: Key changes to right-to-work checks coming into force on 6 April 2022

Joanna Hunt
02/03/2022

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United Kingdom

This content was produced and published in The Employment Law Journal's March edition
 
Fieldfisher's Head of Immigration Joanna Hunt looks at the government’s plans for online checks of prospective employees’ permission to work.

This April, the prevention of illegal working system is going to undergo considerable change.  The Home Office’s intent to create an immigration system where visa holders, by and large, demonstrate their status via ‘digital’ immigration status rather than physical documents and the growth in home working has necessitated significant changes to how employers carry out right to work checks.
 
The system has for years relied on employers checking the physical documents of their would-be employees to ensure they have the requisite permission to live and work in the UK. With the advent of digital immigration status new processes and procedures are required. This will involve employers having an increased reliance on the system of online right to work checks and will also enable third parties to carry out these checks on behalf of employers for the very first time.

Why do employers need to carry out right to work checks?
 
The basic premise of the prevention of illegal working system is that an employer must check the immigration status of every employee before they start to ensure they have the requisite permission to work in the UK.  This is important for two reasons.   Firstly, and most obviously, it provides the employer with reassurance the person can legally work. Secondly, it provides the employer with a form of legal protection if it emerges at a later stage that the individual does not have the right to work in the UK. Simply put a correctly conducted right to work check provides an employer with a ‘statutory excuse’ against a civil penalty. In other words they can avoid a fine of up to £20,000 per worker and the reputational damage of being named and shamed if they carry out a right to work check correctly.
 
The modern workforce features a myriad of employment relationships. An average company can have employees, freelancers and individuals on zero hours contracts all working for them in a variety of contractual relationships. The right to work system  applies to all employees who are above the age of 16, who are physically working in the UK under a contract of employment, regardless of whether the agreement is express or implied, oral or written. If a company is using contractors or freelancers or engaging staff through an agency where the agency is the employer, there is no requirement for an employer to carry out a right to work check, The Home Office does though recommend employers check the status of all workers they have on site.

The civil penalty regime has been in force since 2008 when it was introduced by the Section 15(1) of the Immigration, Asylum and Nationality Act 2006. Under this provision,  an employer could be given a civil penalty for inadvertently employing an illegal worker.  This meant that an employer no longer had to be aware that the person was considered an illegal migrant, it was enough that they had employed them even if they had no knowledge of the fact they had no status in the UK.

Section 15(3) gave the employer their get out of jail free card. This introduced the concept of the ‘statutory excuse’ which would exempt an employer from a fine provided they carried out a right to work check correctly.

The intervening years have seen a number of changes to the documents that can be accepted and the manner in which the right to work checks can be carried out. At the present time there are three ways for an employer to carry out a right to work check. They are referred to as ‘manual’ and ‘online’ right to work checks, alongside an adjusted right to work check process introduced in response to the pandemic and the move to home working in March 2020.
 
Manual right to work checks
 
In short this refers to the check an employer carries out of an employee’s  physical documents. The types of documents which are acceptable as evidence of right to work are contained within List A and List B, detailed in the “Employers’ right to work checklist”.
 
 List A has the documents that provide an ongoing right to work, for instance those provided by British nationals or those who have Indefinite Leave to Remain in the UK.  List B is split into two groups of documents which provide a temporary right to work.

  • List B Group 1 includes the documents providing temporary visa permission which must be checked before the start of employment and again before expiry.
  •  List B Group 2 includes those individuals who cannot produce their original documents for instance, they have an outstanding application or appeal with the Home Office.
In this case an employer must check the documents (that are available) before the start of employment. They then must make an application to the Employer Checking Service (ECS) to obtain a positive verification notice that will show the individual has the right to work in the UK.  This provides a statutory excuse which is valid for 6 months. At the end of six months a repeat check must be done.
Once the check has been completed, the employer has to keep a copy of the documents in a format which cannot later be changed. They must also record and retain the date on which the check was made - simply writing the date on it is not deemed sufficient. Copies can be stored in either electronic or paper format.
An employer must be present with the employee either in person or via live video link when they conduct the check but must have the physical documents in hand. This has made the manual check rather redundant and unworkable in the era of home working.
Online right to work checks
 
The Home Office’s online right to work system, launched in early 2019 provides a solution to this. For an online right to work check, an employer can access a portal which allows them to view an employee’s immigration status. This avoids the need to see physical documents and gives an employer a clearer indication of an employee’s ability to work in the UK.
 
The main problem is that the online system is currently only available for people who hold biometric residence permits or cards and those individuals who hold digital immigration status, such as under the EU Settlement Scheme.
 
It works as follows; the employee views their Home Office right to work record by logging into the migrant right to work check access point and issues the employer with a ‘share code’, which is valid for 30 days.The employer then enters the share code, along with the person’s date of birth online at the employers’ right to work check access point.
The online right to work, if available, has been helpful for those companies needing to check workers who are based remotely. The online system still requires the employer to check the employee matches the photo but it is sufficient if they appear live via video link.
The employer still needs to retain a clear copy of the online right to work check – this is the ‘profile’ page confirming the individual’s right to work and may be printed or saved as a PDF or HTML file.

Temporary adjusted right to work procedure during the COVID-19 pandemic

In March 2020, the Home Office published an adjusted procedure for right to work checks to be used whilst employees were working from home. Originally envisaged as a ‘temporary’ measure, the process has remained in place whilst home working has continued to be the norm.
Under the adjusted policy, employers can check an employee’s physical documents via a scan or a photo of them. They must hold a video call with the person and ask them to hold up their original documents and check the documents shown in the call against the scan/photo received. They must then mark the copies with the printed name of the person conducting the check, their signature and the wording ‘adjusted check undertaken on [date] due to COVID-19’
This adjusted process is due to come to an end on 5th April 2022 in time for the new changes to come into force the following day.

What is going to change?

Checking biometric residence permits (BRPs)

On 16 December 2021, the Home Office published updated prevention of illegal working guidance for employer. One of the key changes in the new guidance is the approach that should be taken when carrying out checks for individuals holding biometric residence permits.

From 6 April 2022, employers will only be able to conduct valid right to work checks of biometric residence permits or cards using the Home Office online right to work check service. Employers should not check physical biometric residence cards, even if they are valid. BRPs will be removed from the list of acceptable documents used to conduct a manual right to work check. If employers fail to use the online right to work checking system, then the right to work check will not be compliant. This will mean that the employer will not have a statutory excuse from a civil penalty, a fine of up to £20,000 per worker, if it emerges at a later stage that the person does not have the right to work in the UK.

Employers will not have to carry out retrospective checks on individuals who previously used their physical biometric residence permit to evidence their right to work prior to 6 April 2022. The Home Office has assured that employers will maintain the statutory excuse against any civil penalty if initial checks were made in line with the guidance in force at the time of the check.

Checking the right to work evidence for British and Irish nationals

With the end of the adjusted right to work check process, a sustainable and long term solution is required, allowing employers to carry out virtual checks for British and Irish nationals who are currently unable to use the online system. The Home Office has been working on specialist technology for some time, honing in on Identity Document Validation Technology (IDVT). This offers the possibility of providing a smooth and efficient checking service as IDVT can quickly and easily establish the authenticity of documents presented for identity checks.

The Home Office has announced that from 6th April 2022 employers will be able to use certified Identity Service Providers (IDSPs) to carry out digital eligibility checks for British and Irish nationals who hold a valid passport. They will be able to upload images of their documents via the IDSP instead of having to present physical documents to employers meaning they will be able to have their right to work evidence checked remotely.

A valid check carried out by an IDSP will provide an employer with a statutory excuse from a civil penalty.  An employer will still need to confirm the person who presented themselves for work is the same person who was subject to check via an in person meeting or video call.

The IDSP will have to go through a certification process to be able to carry out these checks but they will be able to charge a fee to employers to provide this service - envisaged to be around £15 to £70. It will not be mandatory to use an IDSP - manual right to work checks will still be acceptable - but as remote working patterns remain commonplace, the service is likely to prove popular among employers. 

What does this mean for employers?

It is vitally important that employers are aware of these changes. There is a risk many employers will continue to carry out physical checks of biometric residence permits, unaware that this is not providing them with the statutory excuse they need. Employers will need to ensure that they are familiar with the online right to work checking system and that recruitment and policy documents are updated to make reference to it and the new processes.

The fact that a solution is being offered for checking the right to work evidence for British and Irish nationals remotely is to be commended but the concern that a fee will be associated with this will place an unnecessary cost burden on employers. The Home Office has again been slow to communicate this new process and it needs to provide employers with clarity on how they can use this new system compliantly.

We are still waiting for further information about how it will work to fully understand how employers can prepare. Employers need a prevention of illegal working system that is workable and easy to manage. We will have to see when the system launches in April whether it achieves this goal or if it results in further complexity and cost.
 

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Areas of Expertise

Immigration