All UK employers have an obligation to prevent illegal working. To do so they must conduct “right to work” checks when taking on new recruits. These checks involve verifying a new recruit’s identity, nationality and confirming that they have the appropriate immigration status for the position.
How To Conduct A Right To Work Check
In accordance with UK Government guidelines and the “Code of practice on preventing illegal working” (“Code of Practice”), a right to work check should be conducted before someone is employed. Employers have the option to conduct either a manual right to work check or an online right to work check.
Manual Right To Work Check
There are three steps to conducting a manual right to work check:
- obtain original versions of one or more of the acceptable documents;
- check the documents validity in the presence of the holder of the documents (this must be done either in person or via live video link); and
- make a clear copy of each document.
Step 1: Acceptable Documents
The Government sets out two lists of acceptable documents, one which contains documents acceptable for an individual who has a permanent right to work in the UK (e.g. a passport or national identification card) and another which contains documents acceptable for an individual who has a temporary right to work in the UK (e.g. a passport containing a visa, a residence card or residence permit). In respect of the latter, their time to work will be time-limited and so a follow-up check will need to be conducted.
Step 2: Check
An employer must check:
- that photographs and dates of birth are consistent across documents;
- that expiry dates for permission to be in the UK have not passed;
- any work restrictions to determine if they are allowed to do the type of work on offer;
- 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 (e.g. original marriage certificate).
Step 3: Copy
You must make a clear copy of each document in a format which cannot manually be altered and retain the copy securely either electronically or in hardcopy. You must also make a record of the date on which you conducted your check.
These copies should then be kept for the duration of the individual’s employment and for two years afterwards.
Online Right To Work Checks
If an individual has an immigration status that can be checked online (this currently includes people who hold a biometric residence permit, biometric residence card or status issued under the EU Settlement Scheme), employers can conduct an online right to work check.
In order to conduct an online right to work check an employer must:
- use the Home Office online right to work checking service in respect of an individual and only employ the person, or continue to employ an existing employee, if the online check confirms they are entitled to do the work in question;
- satisfy itself that any photograph on the online right to work check is of the individual presenting themselves for work; and
- retain a clear copy of the response provided by the online right to work check (storing that response securely, electronically or in hardcopy) for the duration of employment and for two years afterwards.
A follow-up check will also need to be conducted where an individual’s permission to be in the UK and do the work in question is time-limited.
EU Citizens: checks between 1 January 2021 – 30 June 2021
A consequence of Brexit was the end to free movement between the UK and EU on 1 January 2021. This means that EU, EEA and Swiss nationals will need to qualify for their immigration status in the UK either under the new points-based system or the EU Settlement Scheme.
EU, EEA and Swiss nationals who were lawfully resident in the UK before the 31 December 2020 may be eligible for pre-settled or settled status. These people have up until 30 June 2021 to apply for such status otherwise they will lose their right to live and work in the UK, unless they are able to obtain an alternative visa.
Employees are not required to show evidence of their status under the EU Settlement Scheme until after 30 June 2021 (and employers cannot compel them to do so). Until then, all EU, EEA and Swiss citizens’ right to work checks should be done as they have previously been done (e.g. by obtaining copies of their passport or identity card). An employer employing an EU, EEA or Swiss citizen between the 1 January and 30 June 2021 should, however, check that they were resident in the UK by 31 December 2020.
EU Citizens: checks after 30 June 2021
There is no requirement to retrospectively undertake checks on EU, EEA or Swiss nationals who were employed on or before 30 June 2021. For new applicants, however, they will no longer be able to rely on their passport or identity card to prove their right to work in the UK and instead will have to provide acceptable evidence of their status under the EU Settlement Scheme or another appropriate visa.
An individual will not usually get a physical document if they have been granted settled or pre-settled status. They will only be able to prove their status online using the Home Office’s right to work online checking service. Employees will generate a digital code which they can share with their employers to prove their immigration status and right to work.
The Government is expected to release new guidance on how to conduct these checks prior to 30 June 2021.
Sanctions Against Illegal Working
If an employer fails to carry out right to work checks and is unlawfully employing someone on the grounds of their immigration status, they could be liable for a civil penalty of up to £20,000 per illegal worker. They may also be subject to other sanctions including closure of business, disqualification of director, not being able to sponsor migrants and (in serious cases) a criminal conviction if the employer knows or has reasonable cause to believe that they are employing an illegal worker.
If an employee is found to be working illegally but the employer has conducted the right to work check in accordance with Government guidelines or the Code of Practice, they will have a statutory excuse against liability for a civil penalty.
It is a prerequisite for any employer to conduct right to work checks on new employees to prevent illegal working and avoid potentially hefty civil and even criminal penalties. Until the 30 June 2021 these checks will remain largely unchanged. Following that date, however, employees will need to obtain additional proof from EU, EEA and Swiss citizens of their right to work either under the EU Settlement Scheme or another appropriate visa, the latter of which may require sponsorship from the employer. This change, however, is accompanied by the Home Office rolling out an online checking system, which should streamline the right to work checking process for employers.
This article is provided by Burlingtons for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact Helena Antoniou or write to us using the contact form below.