Changes to Right to Work checks from 1st October 2022

All employers in the UK should be aware of the changes to the right to work checking process from 1 October 2022.

During the coronavirus pandemic, in light of lockdown restrictions, the Government relaxed the rules on right to work checks, adjusting them to allow employers to carry out checks via video call or by verifying documents electronically in the absence of being able to meet individuals in person. As the UK continues its transition out of the pandemic, the temporary changes allowing remote right to work checks, will be coming to an end.

As of 1^st October 2022, remote checks involving scans of ID documents will no longer be acceptable evidence of right to work in line with Home Office guidance. A return to manual checks of physical, original documents will therefore need to be brought back into your internal processes in most circumstances. Failing to do so may result in civil penalties and even criminal sanctions for your business.

How to carry out a Right to Work check from 1^st October 2022

Manual right to work checks involve a three step process:

• Step One: Obtain – obtain original versions of acceptable documents in line with the Home Office right to work checklist
• Step Two: Check – check the documents’ validity in the presence of the holder
• Step Three: Copy – make and retain a clear copy, and record the date the check was made, and who by.

The method of the check, and the documents required as evidence, will depend on the nationality of the individual and the type of immigration status document they hold.

British and Irish nationals

Right to work checks can be carried out by one of two methods:

• Manual check

In light of the changes from 1^st October 2022, unless an IDSP is used (see below), employers will need to return to checking physical, original documents for British and Irish nationals (i.e. a British or Irish passport, or Irish passport card) in the physical presence of the individual, or via live video link.

• Identity Service Provider (IDSP)

With a view to moving towards an online system, IDSPs are companies authorised to validate the authenticity of documents and provide verification of immigration status to employers. Employers can therefore engage the services of IDSPs to carry out checks on British a Irish nationals.

Holders of BRPs, BRCs, eVisas, Digital Status or Frontier Worker Permits

If the individual is a non-British or Irish national and holds a biometric residence card or permit (BRC, BRP), eVisa digital status or a frontier worker permit, then the check must be carried out via the Home Office online service. Checking physical documents for individuals with these immigration documents is no longer acceptable.

Holders of other immigration documents

If the employee or job applicant is a non-British or Irish national and does not hold a BRC, BRP, eVisa, digital status or frontier worker permit, then the manual check process set out above must be followed, i.e. checking original documents either in the physical presence or via live video link of the individual. If this is not possible, in some circumstances, you may be able to use the Home Office Employer Checking Service.

Consequences of failing to carry out checks in accordance with Home Office guidance

The Home Office guidance on right to work checks is very prescriptive; missing a specified step in the process could lead to serious consequences for you and your organisation.  

If you fail to check an individual’s right to work status in accordance with the Home Office guidance and they are found to be an illegal worker or not have permission to carry out the work they are employed to do, the organisation and owners of the business could face:

• Civil penalties for illegal working - up to £20,000 per illegal worker;
• Criminal prosecution;
• Sponsor Licence suspension or revocation if your business holds a sponsor licence allowing it to sponsor non-settled, skilled workers;
• Director disqualification;
• Inclusion on the Home Office Civil Penalty Offender list (“naming and shaming”);
• Potential reputational damage.

Do employers need to carry out retrospective checks for any employees whose right to work was checked in line with the temporary covid measures (e.g. remotely, checking scanned and not original documents)?

No. There is no requirement to carry out retrospective checks on any employee hired between 30 March 2020 and 30 September 2022. If the check was carried out in the prescribed manner under the temporary covid concessions, then this will provide adequate defence to any civil penalties that may arise in the event it is discovered an employee does not have the right to work in the UK.

What should you do now?

We are encouraging all employers to review their internal right to work processes to ensure compliance with the Home Office guidance, to avoid the potential ramifications for employing illegal workers set out above.

HR teams, managers, and anyone authorised to carry out right to work checks should receive training on the checking process. Your policies on document retention should also be reviewed.

Right to work can be a complex and tricky area, and the consequences of getting it wrong can be catastrophic for businesses. If you require any advice regarding your internal right to work checking process, please contact Ashfords’ Employment and Immigration teams.