Background

Employers are required by law to take steps to prevent illegal working. In practice, the best way to do this is to carry out right to work checks on all prospective employees, in the prescribed manner set out by the Home Office. Employers who do this correctly will obtain a statutory excuse against penalties in the event that an employee is subsequently found to be working illegally.

Failing to carry out right to work checks properly - or at all - or knowingly employing illegal workers can leave businesses liable to fines and/or civil penalties. Employers who hold a sponsor licence face having it revoked and a mandatory 12-month period before they can re-apply.

You do not need to carry out checks for existing employees from the EU, EEA or Switzerland if they came to the UK before 1 July 2021 and UK and Irish citizens will only need to be checked once.

Temporary Covid-19 Changes

In March 2020 the government introduced adjusted measures for employers carrying out right to work checks during the Covid-19 pandemic. Those measures have since been extended and are currently due to end on 30 September 2022. In summary:

• Checks can be carried out via video call rather than in person.

• Original documents are not required. Individuals can send scanned documents or photos of documents – although they must be able to show the original on a video call.

• If an individual cannot provide documents from the acceptable list, employers can ask the Home Office to check their immigration status using the online Employer Checking service. Employers need to obtain the individual's permission prior to requesting the check.

• Retrospective checks are not required for anyone who had an adjusted check between 30 March 2020 and 30 September 2022.

April 2022 changes – Digital Checks

As of 6 April 2022, employers must carry out online checks for individuals who hold a biometric residence permit, biometric residence card or frontier worker permit. It is no longer possible to carry out a physical check of these documents.

British and Irish citizens with a valid passport or Irish passport card can also use a new online system to prove their right to work. This involves uploading copies of documentation via an Identity Service Provider (IDSP) verified by the Home Office. This online scheme is not mandatory however and employers can continue to carry out manual checks in the usual way if they wish.

Top Tips

• Check everyone. You shouldn't make assumptions based on whether you think someone appears to be a migrant. Subjecting everyone to a check should also help you avoid allegations of discrimination. If in doubt, check the Code of Practice on avoiding discrimination when carrying out right to work checks.

• If you are carrying out a manual check, make sure you record the date that the check took place.

• If an employee's right to work is time limited, you will need to conduct a follow up check again before their permission to work expires. Employers are required to keep records of right to work checks and it is good practice to insert reminders to your internal calendar system, to ensure that any necessary follow up is conducted in good time.

• If using an IDSP, ensure that your own staff receive appropriate guidance and training on the IDSP framework, including when and how they can delegate elements of the checking process.

• Liability for penalties always rests with the employer. If you chose to use an IDSP, you will only obtain a statutory excuse against penalty if they carry out the check correctly. While the financial risk of a penalty can be covered off via an appropriate indemnity, the risk of reputational damage

• In TUPE scenarios, it is advisable to carry out fresh checks on any employees you acquire as part of a transfer, rather than rely on previous checks. Employers have a 60 day grace period, from the date of the transfer, to carry out fresh checks. Any necessary follow up checks do not benefit from a grace period however.