Immigration - Changes to Right to Work Checks
Since 2016 the Immigration Act has required employers to proactively ensure that they do not employ illegal workers, by undertaking face to face Right to Work checks before employment begins. During the pandemic the requirement for face to face checks to take place was suspended and these could be done virtually via Teams or Zoom etc.
With effect from 1 October 2022 the requirement is back on employers to undertake face to face checks in order for them to be able to claim the ‘statutory defence’ of not knowingly employing an illegal worker having carried out all appropriate checks. So, no more checks via Teams or Zoom.
The Home Office has however, recognised that now many more people work from home in some capacity, it is not always a viable option to undertake a Right to Work check face to face so it has introduced a digital checking option via an IDSP (certified identification document validation technology service provider) to conduct the required check on the employer's behalf. Obviously there will be a fee for this depending upon the service provider chosen. This check is for British and Irish nationals only. For EU nationals and other foreign nationals who have a biometric residence card or permit, it is compulsory to undertake their Right to Work check online using the Government's checking tool. For this employers will need the individual's date of birth and the right to work share code. This is a free check.
If the appropriate checks, whether face to face or on-line, are not carried out properly and the employment of someone who is using a fake or borrowed ID that could have been picked up via the digital check is found, the employer could well be fined £20,000 for not using the correct methodology for the check.
We are aware that a lot of employers do not undertake Right to Work checks until the successful candidate has started employment with them, but at this stage the check is too late. It really should be carried out before someone starts work, usually at interview stage. If the interview is done face to face, then the Right to Work check can take place at the start of the interview, saving time for all concerned if the candidate does not have the right to work in the UK.
So, in summary there are now three ways in which Right to Work checks can be carried out:
- Face to face - usually with the candidate's passport. This must be checked thoroughly to ensure that the individual you are interviewing is the person they say they are, so look at photographs, signatures and dates of birth to be sure you have the right person, as well as checking the passport itself to be sure that it is not a fake. A copy needs to be taken of the front page of the passport, the biometric pages and any work permits or visas that relate to the individual's stay within the UK. This check will suffice for British and Irish nationals.
- If you cannot do a face to face check for British and Irish nationals, you can do a digital check using a certifiied service provider. There will be a fee for this.
- For those people that are here via the EU settlement scheme or for other foreign nationals with residence cards or work permits, it is compulsory that you check their right to work using the Government's own on-line checking tool - 'View a job applicant's right to work details'.
It is definitely worth undertaking the Right to Work check before you offer anyone employment so that you do not waste any time offering someone a job who does not have the right to work in the UK. If you would like any help in how to carry out a face to face Right to Work check, please contact us.