UK employers are required to conduct right-to-work checks on prospective employees. These checks ensure that every worker is legally permitted to work here.
Prior to April 2022, employers could perform right-to-work checks in one of three ways:
- Manually checks: Human Resources reviews a potential employee's official documents manually to ensure they are legally entitled to work in the UK. Employers are required to obtain original documents from employees, conduct verification in front of them, and take a copy.
- Online right-to-work checks: The Home Office's online system allows employees who hold a BRC, BRP, pre-settled or settled status under the EU Settlement Scheme, a British National Overseas passport, or a Frontier Worker Permit to generate a share code and check their immigration status online. Employers can verify the candidate's eligibility by accessing the Home Office's employers portal.
- Virtual checks: The Home Office introduced a temporary method to conduct right-to-work checks using virtual technology due to the difficulties employers faced during Covid-19. The method uses scanned copies or video calls for right-to-work checks.
However, manual and online checks have changed since 6 April 2022. Maintaining compliance is made easier if you remain aware of the changes.
Right-to-work changes from 6 April 2022
Before an employee can start working, an employer must check the applicant's right-to-work online by using a shared code provided by the prospective employee and Physical cards are no longer accepted. Manual checks are only available for British and Irish citizens.
Digital right-to-work checks
In April 2022, a new online system for checking the right-to-work was introduced for British and Irish citizens with valid passports (including Irish passport cards). A share code is not required to use this system. British and Irish passport holders can instead utilise certified IDVT service providers to conduct digital identity checks on their behalf.
It must be noted, however, that online checks are not free.
As a temporary measure in response to the pandemic and lockdown restrictions, the Home Office introduced the COVID-adjusted right-to-work scheme in March 2020. The scheme, originally scheduled to end on 5 April 2022, has been extended until 30 September 2022.
Why this is important
Adapting and revising internal procedures is vital to ensure compliance with the new rules. A right-to-work check is required for all prospective employees, including British and Irish citizens. Each candidate must be given a fair chance to prove their eligibility for employment.
Even if an employer assumes the employee has the right-to-work, if they fail to conduct a right-to-work check, they may face a civil penalty. In the event of a failure to perform the right-to-work checks correctly, sanctions may include:
- A civil penalty of up to £20,000 per illegal worker;
- In severe cases, a criminal conviction carries a prison sentence of up to 5 years and an unlimited fine;
- Closure of the business and a compliance order issued by the court;
- Disqualification as a director;
- Not being able to sponsor migrants;
- Appear in the publication of non-compliant employers, which may damage reputation;
- In addition, seizing earnings generated by illegal work, industry-specific sanctions are possible too. in certain industries, employers may have the revocation of licences in the fields of alcohol and late-night refreshment, as well as private hire vehicles and taxis.
Are follow up right-to-work checks required?
In the event that an employee has only been permitted to work in the UK for a limited time, you will need to recheck their ability to work when their permit expires.
As shown above, not all individuals will be eligible for the new online right-to-work check. A person can request confirmation that they are legally allowed to work in the UK through the Employer Checking Service ("ECS") of the Home Office. ECS can be used in the following situations:
- The individual has submitted an application for permission to stay in the UK under the EU Settlement Scheme (EUSS) by 30 June 2021 but is yet to receive a decision and has a non-digital Certificate of Application or acknowledgement document from the Home Office confirming the same;
- The Individual has submitted an application for permission to stay in the UK under the EUSS after 30 June 2021 but is yet to receive a decision, and they have a non-digital Certificate of Application confirming the same;
- The individual has applied for permission to remain in the UK before the expiry of their previous visa, and this application remains outstanding;
- The individual has a pending appeal or administrative review;
- The individual has an Application Registration Card (ARC); or
- The individual is a long-term resident in the UK and arrived before 1988.
The ECS can be accessed via the government website by entering the individual's details (name, date of birth, Home Office reference number, etc.). Requests are typically answered within five working days, but this can be subject to delay.
A Positive Verification Notice ("PVN"), valid for six months, will be issued if the Home Office verifies that the individual is eligible to work in the UK.
A valid right-to-work share code, which may be generated online using the 'Prove your right-to-work' portal, is required to complete their right-to-work checks. The share code is valid for 30 days.
Working with external services
IDSPs and employers must follow Home Office identity verification criteria in order to use these services. For employers:
- Ensure the IDSP is certified according to the required standards;
- To provide appropriate training and guidance to their staff;
- Comply with all right-to-work ID verification criteria set forth by the Home Office and per existing right-to-work guidelines and legislation.
While the share code system is free for employers, the IDSP could cost employers between £1.45 and £70 per check for British and Irish citizens. It is not mandatory for employers to use this system and they can continue to conduct manual checks on British and Irish citizens' right-to-work.
Retrospective checks and discrimination
Biometric cardholders who were screened for right-to-work prior to 6 April 2022 do not need to undergo a retrospective check. On the provision, a physical card was used to conduct the check.
If the initial checks were undertaken in line with the guidance applicable at the time the checks were made, employers would maintain a statutory excuse against civil penalties.
Employers who conduct retrospective checks must do so for all employees, not just non-UK nationals, in order to avoid any discrimination claims. Employers are also responsible for terminating employees if the retroactive check reveals they are not authorised to work.
What if the applicant doesn’t have the right documents?
Candidates who cannot present their documents, such as individuals who have outstanding applications with the Home Office, should obtain a Positive Verification Notice (PVN). PVNs provide a statutory excuse for six months. After this point, another PVN will be required unless the worker can present themselves in person for a right-to-work check or in the meantime, prove that they are entitled to work under the adjusted procedure.
What happens if an employee is hired illegally?
The failure to follow these procedures can lead to a civil fine of up to £20000 and in extreme cases, a criminal conviction.
The Home Office can charge you with a crime if it determines that you knew or should reasonably have known that the individual was working illegally. Your sentence could be up to five years in prison if you don't comply with the right-to-work check.
A sanction imposed on an employer may also have an impact on the employer's sponsor license. As a result, all reasonable steps should be taken to ensure that all employees have the authority to work in the roles for which they have been hired.
In cases where mitigating factors exist, but the right-to-work is not fully compliant, the Home Office can reduce the civil penalty. For each of the following four mitigating factors, the penalty is typically reduced by £5,000:
- where the employer has self-reported the suspicion of illegal working;
- where the employer has conducted a partial right-to-work;
- where the employer has cooperated with the Home Office on the investigation; and/or
- where the employer generally has robust systems in place to prevent illegal working.
For a first breach, the penalty can be reduced to zero. If it is not the first offence, it is not a guarantee that the Home Office will apply its discretion to reduce the penalties beyond those listed here. In addition, a civil penalty recipient will be named by the Home Office and that information made public.
It is the responsibility of employers to ensure that the workers are legally entitled to work in order to avoid paying a fine for hiring an unauthorised hire.
What documents do you need for a right-to-work check?
To properly assess an applicant’s right-to-work, the following documents must be presented:
- The visa/permit holder must generate a right-to-work share code online through the government portal and share this with their employer.
- Permit holder’s date of birth
These documents can be used to verify and confirm whether the person has the right-to-work and when their leave expires (if relevant).
Understanding the right-to-work law & policy changes
The UK government is introducing changes to how employers are expected to verify the right-to-work of both current and prospective employees.
Employers will be required to conduct online right-to-work checks starting on 6 April 2022 for those with a biometric residence permit ('BRP'), a biometric residence card ('BRC') or a frontier work permit ('FWP'). Right to work checks will no longer be permitted to be conducted using a physical BRC, BRP or FWP after this date.
If you’d like to speak to someone at Zinc about these changes and how our platform supports scaling businesses with compliant hiring, book a call here.
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