October saw yet more change in the world of prevention of illegal working.

Social distancing and remote working became the new norm during the COVID-19 pandemic – in response the Home Office introduced concessions to accommodate right to work checks in such circumstances. These permitted employers to complete adjusted right to work checks – essentially checking scanned documentation (as opposed to originals) via video calls. Those adjusted checks ceased on 30 September 2022 – manual checks now require a review of original documentation.

The civil penalty regime (and associated right to work checking requirements) was first introduced on 29 February 2008 and has evolved significantly since then. It is important employers ensure they are up to speed with the latest requirements and conduct compliant checks. Those licensed under the points-based system hold an elevated position of trust with the Home Office and so are under even greater pressure to be on top of these requirements.

Why do right to work checks?

Employers are expected to complete prescribed right to work checks against all recruits (regardless of nationality) to ensure they only employ individuals with the right to work in the UK.

There is no standalone liability for failure to complete compliant checks. However, failure to do so will leave an employer open to a civil penalty (of up to £20,000 per breach) if found to be employing an illegal worker. Compliant right to work checks secure a statutory excuse to civil liability for illegal working. Other risks of illegal working include:

• Criminal liability
• Sponsor licence suspension or revocation
• Disqualification of directors
• Business interruption / closure
• Invalidated insurance
• Reputational damage (the Home Office publish details of those subject to civil enforcement action).

The 4 steps to a right to work check and statutory excuse

There are various stages to completing a compliant right to work check and, unfortunately, plenty of scope to slip up along the way. All stages should be completed correctly to secure a statutory excuse you can evidence to the Home Office. Remember a statutory excuse cannot be obtained retrospectively.

Below we highlight some common areas of uncertainty for employers.

1)    Obtain right to work evidence

Since 1 October, only the following checks are permitted and will secure you a statutory excuse if completed correctly:

• Manual checks (of original documents in the presence of the holder – is your team up to speed with the documents they can accept as evidence of right to work and when those documents must be current or can be expired?)
• Online checks (using the online checking service via an employee generated share code)
• Checks using the services of an identification service provider (“IDSP”) (Does your team know when an IDSP can be used? Have you appointed one or do you intend to do so? Would this support more efficient right to work checks for your business?)

Did you know? Online checks are now mandatory for certain individuals, including biometric residence permit holders.

Businesses should consider whether their team is comfortable with when each of these options is permitted or mandatory under current rules and how to compliantly complete a check.

In some cases, employers must also verify the individual’s status with the Home Office’s employer checking service (“ECS”). This is often confused with online checks. It is important to understand when this is required and the timing for doing so to avoid an inaccurate response.

The timing of right to work checks is also key. Does your business complete right to work checks at interview? Day one? Week one? Is your team comfortable with when to do initial checks to ensure you have a statutory excuse to illegal working? What about follow-up checks for those with a time-limited right to work?

Acquiring staff in a TUPE transfer? Is your team up to speed with the post-TUPE checks required to secure a statutory excuse to illegal working and the deadline for completing them?

It is vital checks are completed at the required times to secure and maintain a statutory excuse to illegal working. This helps avoid the risk of someone starting without a compliant check completed and/or having to delay their start date to iron-out any wrinkles with their right to work evidence.

Did you know? You get an extra grace period in which to complete repeat checks against existing staff in certain circumstances.

For those employing or recruiting EEA national staff it is important to remember that now the UK has left the EU there is no freedom of movement to the UK for non-Irish EEA nationals. Are you comfortable with what you can accept from EEA nationals as evidence of right to work and the strength of your previous checks against such individuals?

Did you know? The rules changed on 1 July 2021 and non-Irish EEA passports are no longer acceptable evidence of a right to work in the UK. 

2)    Check

So, you’ve identified the type of check you are completing for an individual and gathered their right to work evidence. Do you know what you’re looking for when reviewing it?

It’s important those completing checks review the information obtained and check it against the individual in question. This is the case for every type of check (manual, online or IDSP). Assumptions or a more light-touch review based on perceived nationality or time in the UK must be avoided. You’re not expected to complete a forensically detailed examination, but it should be sufficiently and reasonably thorough to identify a reasonably apparent imposter for example.

Did you know?  If you employ student visa holders, they are subject to working hours restrictions and so you are required to get additional evidence from them to secure a statutory excuse. Further, there are specific rules on when they can take on full-time hours and/or fill a permanent position.

3)    Copy and record

Recording right to work checks is an area in which employers commonly slip up and fail to secure a statutory excuse. Employers must keep an unalterable copy of the check completed. Keeping a record of the check, and date on which it was completed, is also key – particularly for manual checks.

Did you know? In a manual check simply signing and dating a copy document or signing and dating it as a “certified” copy will not be a compliant record and won’t secure a statutory excuse to illegal working. The record must be in line with Home Office requirements.

4)    Retain

Are you retaining your right to work records for long enough?

Did you know? The Home Office can investigate illegal working in respect of former staff and impose civil penalties even if they are no longer employed by you. Right to work checks must be retained for the duration of employment and up to two years thereafter to evidence a statutory excuse if necessary.

Get your team up to speed

It is vital to have robust and consistent processes in place for the completion of compliant right to work checks in your business and for your team to be well versed in the latest requirements. Our top tips for compliance include:

• Training. Whether your team needs in-depth training on the above steps and problem areas, or a quick refresher on the latest requirements, training is key.

• Policies and procedures. It is helpful to have a right to work policy in place, together with comprehensive guidance for those completing checks on how to do so. A detailed checklist, walking them through how to complete a compliant check can be invaluable. Such documents should be in line with current requirements and subject to periodic review and update.

• Tracking mechanisms. Having a robust system in place for tracking visa expiry dates is crucial to keep on top of right to work compliance.