Right to work rule change all employers need to be aware of
Published 07 March 2022
New technology is set to help employers carry out essential checks to establish an employee’s right to work in the UK in a move to crack down on abuse of the immigration system.
All employers have a responsibility to prevent illegal working, which is set out in sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 [1 cited 7.3.22]
Right to work checks are a required part of the recruitment process when hiring new staff. From 6 April 2022, anyone wishing to work in the UK will have to evidence their right to work using the Home Office online service [2 cited 7.3.22]
Employers will no longer be able to accept physical cards for the purposes of a right to work check even if it shows a later expiry date.
Biometric Residence Permit (BRP) and the Biometric Residence Card (BRC) are documents (cards) evidencing a person’s right to remain in the UK. They include the conditions of their visa type such as when their visa is due to expire [3 cited 7.3.22]. A Frontier Worker Permit (FWP) is issued to an EEA citizen who is resident outside the UK but economically active within it.
The new requirement to carry out online checks will mean that BRPs, BRCs, and FWPs will be removed from the list of acceptable documents used to conduct a manual right to work check.
From 6 April the checks on these documents will need to be carried out using the Home Office’s digital checking service.
Certified identity service providers (IDSPs) will be able to use Identification Document Validation Technology to conduct right to work checks.
IDSPs allow people to verify their identity remotely and prove their eligibility to work, which will reduce the costs of the recruitment process.
An online right to work check will provide an employer with a statutory excuse against any enforcement action in the event an employee is later found to be working illegally.
There are circumstances in which it will not be possible to conduct an online right to work check. All new recruits will not have an immigration status which can be checked online.
The online checking service details the information needed. In circumstances in which an online check is not possible, an employer should conduct a manual check on physical cards for evidence of a right to work [4 cited 7.3.22]
The government warns that penalties for employing illegal workers can include a five-year jail sentence and an unlimited fine for recruiting someone a business knew or had ‘reasonable cause to believe’ did not have the right to work in the UK [5 cited 7.3.22]
Most recent figures (1 July to 30 September 2021) for just the London and South East region show that 11 businesses were fined a total of £165,000 when they were found to have employed illegal workers [6 cited 7.3.22]. The biggest fine of £30,000 was issued to a supermarket.
All of those in charge of the recruitment process need to understand their responsibility to correctly carry out right to work checks, and, therefore, ensure compliance with the law.
It is essential that an employer ensures all staff are aware of the new requirements, as it will be liable for the civil penalty even if the actual check is performed by a member of staff.
A company will not be able to dodge its responsibility if the right to work check is performed by a third party e.g. a recruitment agency or professional.
In simple terms, the check must be carried out by the employer who the contract of employment is with.