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The new right to work check regime – are you ready?

By Lisa Uttley, immigration solicitor at Gherson Solicitors LLP (www.gherson.com

The UK has recently implemented a new regime regarding right to work checks. Relaxations introduced during the COVID-19 pandemic ended on 30 September 2022, and new requirements were brought in on 1 October 2022. Not getting these checks right can have serious consequences for UK businesses, therefore getting to grips with the rules is essential. 

New mandatory online checks

Right to work checks must be undertaken on every prospective employee before they commence work, regardless of their nationality and they should be completed before the employee commences work. 

For those who hold a valid Biometric Residence Permit (BRP), Biometric Residence Card (BRC), Frontier Worker Permit, or who has been issued with an e-visa (for example EU/EEA/Swiss national) employers must now undertake an online right to work check. They can no longer perform checks manually, as they could previously. 

Conducting right to work checks via the incorrect method can expose a business to strict penalties in the event that it employs an individual who it turns out does not have a right to work in the UK. Home Office fines can reach £20,000 per illegal worker. If your business is a Home Office licenced sponsor, failing to comply with right to work requirements can lead to a licence being downgraded or, worse, revoked. Reputational damage may also be caused as the Home Office ‘names and shames’ businesses who have received a fine.

In practice, the rollout of online checks is something that could be beneficial to those in an organisation undertaking right to work checks as they are less burdensome than the traditional manual checks. They do however rely on the prospective employee generating and providing the employer with an online share code, meaning that the process cannot be completed by the employer alone. 

Employer Checking Service

Where a prospective employee has a pending immigration application with the Home Office, they cannot use the above online service. Instead, the employer has to seek confirmation of the worker’s right to start employment via the online Employer Checking Service, which can take longer to be returned. This needs to be factored into a business’ recruitment process as it can lead to potential hold ups in the hiring of new staff. 

Manual right to work checks

Generally speaking, manual right to work checks can now only be conducted on individuals who have a valid British or Irish passport. During COVID, measures were put in place to give employers the flexibility to complete manual checks over video call and for scans or photos of candidate’s immigration documents to be accepted in place of seeing originals. These flexible measures ended on 30 September 2022, meaning that if you are manually verifying a British/Irish national’s right to work, the candidate will be required to physically attend your offices with their original documents ahead of their work start date.

Using third parties to undertake checks

The return to pre-Covid right to work checks is likely to make manual right to work checks too cumbersome for larger scale businesses with significant volumes of British or Irish staff members, who will have to carry out right to work checks on a regular basis. Recognising this burden, the Home Office has introduced the option of using ‘certified digital identity service providers’, also known as IDSPs, to undertake the checks on an employer’s behalf. IDSPs are private companies authorised by the Home Office to undertake checks for a fee. It is important to understand that this does not shift the liability for incorrectly undertaken checks to the IDSP, which will remain with the business, as will any penalties. 

Right to work checks remain a challenging part of an HR professional’s work, but getting them right is as important as it has always been. Businesses must ensure that they understand which checks need to be undertaken for which individual, how to carry out the checks and how the information needs to be stored.