Right to Work Checks
Right to Work Checks
The Government recently announced major changes to the way in which employers will be required to carry out Right to Work (RTW) checks. The changes apply to employees and workers employed/engaged on or after 6 April 2022 and, to those employees/workers who have a time-limited* statutory excuse which requires a repeat RTW check. This article sets out the new regime and provides essential information resources.
All employers are responsible for preventing illegal working. Employers must carry out RTW checks on everyone they employ and, more importantly, before the employee/worker starts to work for them. On completion of the RTW check, employers will have a ‘statutory excuse’ against liability for a civil penalty in the event that they are found to have employed someone illegally.
There are two types of statutory excuses, these are:
- continuous: for an individual who has a continuous RTW in the UK (including British and Irish citizens). This means that the RTW check does not have to be repeated and the statutory excuse will continue for the duration of the individual’s employment; or
- *time-limited: for an individual who has a temporary right to work in the UK. This means that the RTW check will need to be repeated when appropriate.
Employers should ask all prospective employees/workers to demonstrate their RTW through either a manual document check, using the services of an Identity Service Provider (IDSP) (see below), or by using the Home Office online service. Employers should not decide for themselves how an individual proves their RTW because doing so could be discriminatory.
The latest Home Office guidance, dated 6 April 2022, provides three ways in which an employer can conduct RTW checks and, in turn, establish a statutory excuse. They are as follows:
1. Manual Right to Work Check
The guidance provides three steps employers must take to carry out manual document-based RTW checks:
STEP ONE: Obtain
Employers must obtain original documents from either List A or List B of the acceptable documents.
List A contains the range of documents that can be used to conduct a RTW check for a person who has a continuous RTW in the UK (including British and Irish citizens). This type of RTW check establishes a continuous statutory excuse and employers do not have to carry out any further RTW checks for the remainder of employment.
List B contains a range of documents that can be used to conduct a RTW check for a person who has a temporary right to work in the UK. This type of RTW check establishes a time-limited statutory excuse and employers will be required to carry out further RTW checks to retain their statutory excuse.
STEP TWO: Check
Employers must check that the documents are genuine and that the person presenting them is the prospective (or existing) employee/worker, the rightful holder and that they are permitted to perform the type of work the employer is offering. Employers must check:
- that photographs and dates of birth are consistent across documents and confirm the person’s appearance in order to detect impersonation;
- that expiry dates for permission to be in the UK have not passed;
- any work restrictions in regard to the individual, to determine if they are allowed to perform the type of work on offer (note: for students who have limited permission to work during term-times, employers must also obtain, copy and retain details of their academic term and vacation times covering the duration of their period of study in the UK for which they will be employed);
- that the documents are genuine, have not been tampered with and belong to the holder; and that
- the reasons for any difference in names across documents can be explained by providing evidence (for example, original marriage certificate, divorce decree absolute, deed poll).
These supporting documents must also be photocopied and a copy retained.
From 6 April 2022, Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) holders are only able to evidence their right to work in the UK using the Home Office online service. This means that employers cannot accept or check a physical BRC, BRP or FWP as proof of RTW in the UK.
STEP THREE: Copy
Employers must take a CLEAR copy (that is, unmarked) of each document obtained and checked (as outlined in step one and two) in a format which cannot manually be altered. They must retain the copy securely (electronically or in hard copy). Employers must also retain a secure record of the date on which they made the check (simply writing a date on the copied document is not sufficient, employers should include ‘the date on which this right to work check was made: [DATE]’).
It is recommended that employers use the ‘Right to Work Checklist’ to ensure that they have carried out all the steps required correctly.
2. Using an Identity Service Provider (IDSP) to carry out a Right to Work Check
From 6 April 2022, employers can use Identity Document Validation Technology (IDVT), via the services of an IDSP, to complete the digital verification element of a RTW check for British and Irish citizens who hold a valid passport. This includes Irish citizens who hold an Irish passport card.
If an employer uses the services of an IDSP for digital verification, then providing that the check has been carried out in accordance with Government Guidance, they will establish a statutory excuse. It is the employer’s responsibility to obtain the IDVT check from the IDSP.
Following a check via an IDSP, employers must satisfy themselves that the photograph and biometric details (ie: date of birth) on the output from the IDVT check are consistent with the individual presenting themselves for work.
Click here for more information on how to complete RTW checks using an IDSP.
3. Conducting a Home Office Online Right to Work Check
Individuals must provide their prospective employers with a 9-character long ‘share code’ which, when entered into the online service with the individual’s date of birth, enables the employer to access the RTW check. Employers must only accept share codes beginning with the letter ‘W’ as this will indicate that the code has been generated by an individual wishing to prove their RTW in the UK. Employers must not accept share codes that begin with the letter ‘R’ or ‘S’, as these are designated for other services.
The following steps must be taken in order to carry out a RTW check using the Home Office online service:
STEP ONE: Use the Home Office online service
The individual may provide the share code with the employer directly or, they may choose to send this to their employer via the online service (if via the online service, the employer will receive an email from email@example.com).
To check the individual’s details, the employer will need to:
- access the service: https://www.gov.uk/view-right-to-work;
- enter the share code provided by the individual (or via the email above); and
- enter the individual’s date of birth.
STEP TWO: Check
The employer must check that the photograph on the online RTW check is that of the individual presenting themself. Employers can only employ the individual, or continue to employ the individual (if conducting a repeat RTW check), if the online check confirms that the individual has the right to work and is not subject to a condition preventing them from performing the work in question.
If the online service stipulates that the individual does not have the right to work in the UK, the employer will not have established a statutory excuse and should therefore, take appropriate follow-up action.
STEP THREE: Retain evidence of the online check
Once the employer is satisfied that the RTW check has been carried out, they must print the ‘profile’ page. There is also an option to save it as a PDF or HTML file. The ‘profile’ page will confirm the name of the employer and the date when the RTW check was carried out (there is no need to write on the document once printed, as you would do with a manual RTW check).
Useful Information for Employers:
Time-Limited Follow Up Checks
Where an individual has time-limited permission to work in the UK, employers should encourage individuals to make their application for further immigration permission before their existing permission expires, this will be deemed ‘in-time’.
By law, copies of RTW checks must be kept securely for the duration of an employee/worker’s employment/engagement and for a further two years after the termination of their employment/engagement, after which point they should be destroyed securely.
If an employer is found to be employing someone illegally and they have not carried out the prescribed checks, they may face relatively severe and costly sanctions including:
- a civil penalty of up to £20,000 per illegal worker;
- in serious cases, a criminal conviction carrying a prison sentence of up to five years and an unlimited fine;
- closure of the business and a compliance order issued by the court;
- disqualification as a director;
- not being able to sponsor migrants;
- seizure of earnings made as a result of illegal working; and/or
- review and possible revocation of a licence in the alcohol and late-night refreshment sector and the private hire vehicle and taxi sector.
- to check if a document allows someone to work in the UK: https://www.gov.uk/legal-right-work-uk
- use this service to ask the Home Office to check an employee/worker’s or potential employee/worker’s immigration status if they cannot show their documents or online immigration status: https://www.gov.uk/employee-immigration-employment-status
- read about how the Home Office decides on civil penalties: https://www.gov.uk/government/publications/illegal-working-
- employers’ guide to right to work checks: https://assets.publishing.service.gov.uk/government/uploads/system-
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