All employers in the UK are required to conduct right to work checks before you employ someone, to make sure the individual is not disqualified from carrying out the work in question by reason of their immigration status.
If a correct right to work check is conducted, you will have a defence also referred to as a ‘statutory excuse’ against liability for a civil penalty. Sanctions for employing someone illegally include a civil penalty of £20,000 per illegal worker. In serious cases, a criminal conviction with a prison sentence of 5 years and unlimited fine.
There are two types of right to work checks – a manual document based check and an online check. Conducting either check will provide a statutory excuse.
You can also use the Employer Checking Service where an individual has an outstanding application, administrative review or appeal, or if their immigration status requires verification by the Home Office
Covid 19 temporary adjusted right to work checks
Due to the impact of Covid 19 temporary adjusted right to work checks were introduced, which permitted checks to be conducted remotely. The COVID-19 adjusted checks to the Right to Work Scheme, introduced on 30 March 2020, will end on 5 April 2022.
You do not need to carry out retrospective checks on employees who had a COVID-19 adjusted check between 30 March 2020 and 5 April 2022 (inclusive). You will maintain a defence against a civil penalty if the check you have undertaken during this period was done in the prescribed manner or as set out in the COVID-19 adjusted checks guidance.
What is changing
Going forward, the way in which Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) holders evidence their right to work is changing. A Biometric Residence Card is provided to non-EEA family members of an EEA citizen. A Biometric Residence Permit is provided to individuals who apply to come to the UK or extend their UK visa for longer than 6 months, and to those who apply to settle in the UK. A Frontier Worker Permit is provided to EEA citizens who are resident outside the UK but are economically active (employed or self-employed) in the UK.
Right to work checks on biometric card holders up to 5 April 2022
BRC, BRP and FWP holders can currently choose to use either the Home Office online service or their physical card to evidence their right to work to an employer.
Employers can continue to conduct manual checks on physical cards for evidence of a right to work until 5 April 2022,
Right to work checks for biometric card holders from 6 April 2022
From 6 April 2022, BRC, BRP and FWP holders will have to evidence their right to work using the Home Office online service only. 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. BRCs, BRPs and FWPs will be removed from the lists of acceptable documents used to conduct a manual right to work check.
Retrospective checks will not be required on biometric card holders who, before 6 April 2022, used their physical card to demonstrate their right to work. Employers would maintain a statutory excuse against any civil penalty if the initial checks were undertaken in line with the guidance that applied at the time the check was made.
Digital identity verification – Certified Identity Service Providers (IDSPs)
On the back of the success of the remote checks permitted by Covid 19 adjusted right to work checks, the Home Office is now introducing a long term digital solution with enhanced security for checks to be conducted remotely for British and Irish nationals.
As of 6 April, employers will be able to conduct right to work checks by using certified Identity Service Providers to complete the digital identity verification and eligibility to work checks on British and Irish citizens who hold a valid passport (including Irish passport cards).
Employers will be required to use the services of a certified IDSP. If employers choose to undertake digital identity verification using their own processes, they will be required to undergo certification as an IDSP.
Employers will not have a statutory excuse in the event the checks are conducted by a non-certified IDSP, and the individual is found to be working illegally by reason of their immigration status.