Right to work changes in the UK 2023: An employer's guide

Conducting appropriate right to work checks on new hires is a legal requirement for employers in the UK. These checks help ensure companies do not unlawfully employ individuals who do not have permission to work in the country. Employers are legally obligated under the Immigration, Asylum and Nationality Act 2006 to conduct right to work checks on all employees before they begin working. This is to prevent illegal work and ensure all workers are permitted to work in the UK.

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The Home Office has recently introduced significant updates to its guidance on conducting right to work checks. There are new requirements employers and HR professionals must be aware of for 2023.

The key changes relate to:

• The routes available for conducting checks
• Expanded use of online services and digital identity verification
• Changes for EU/EEA citizens following Brexit
• New penalties for failing to comply with requirements

Why Right to Work Checks are Important

Conducting right to work checks is a legal requirement for employers under the Immigration Act. But beyond just avoiding penalties, there are several reasons why implementing proper right to work processes is critical:

• Prevent illegal working and avoid penalties - The fines for employing someone who does not have the right to work can be up to £20,000 per illegal worker. On top of fines, employers can face reputational damage, loss of sponsor licence, and even criminal prosecution for repeated breaches. Doing proper checks is the only way for employers to ensure they do not disobey the rules.
• Avoid discrimination - Checks must be conducted without discrimination on all potential employees, regardless of nationality or ethnicity. Singling out certain individuals based on ethnicity could lead to claims of discrimination. Having consistent processes in place will help avoid this risk.
• Implement compliant processes - Often the HR function may have designed a right to work process, but hiring managers are not following proper procedures. This creates a compliance risk for the organisation. Good practice is to provide training and oversight to ensure consistent compliance.

Manual checks involve physically examining original documents in the presence of the applicant. There are 3 steps laid out by the Home Office:

Obtain:

• Be physically present with the applicant to view original documents - photocopies are not acceptable
• For List A and List B documents (explained below), make copies to retain
• Check documents are valid and unexpired

List A Documents:

• UK passport - copy bio page
• Full birth certificate + National Insurance number for UK citizens without passport
• Biometric residence permit showing indefinite leave to remain

List B Documents:

• Biometric residence permit with expiry date - copy front and back
• Visa in passport with expiry date - copy bio pages
• Non-EEA family member residence card - copy front and back

Check:

• Ensure photographs match the applicant's likeness
• Check date of birth is consistent across documents
• Verify any work restrictions to ensure the applicant can work in the role
• Look out for any signs of fraudulent documents

Retain:

• Make copies of documents (must be legible) and record date checked
• Keep copies for the duration of employment plus 2 years after
• Comply with data protection laws when retaining right to work records

By following these steps correctly, employers can establish a statutory excuse against liability for employing illegal workers. But proper training and oversight is vital to ensure consistent compliance.

Digital Right to Work Checks

Digital checks involve using an Identity Service Provider (IDSP) to validate identity documents remotely. This removes the need for in-person document checks.

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The key steps are:

• Use an IDSP to validate identity documents online. This is currently only available for British and Irish passport holders.
• Conduct checks to a minimum of 'medium confidence' level as advised by Home Office.
• When the applicant starts work, check them against IDVT results to confirm likeness.
• Retain copies of the IDVT results for the duration of employment plus two years.
• Do not make digital checks mandatory or discriminate against those unable to use them.

Advantages:

• Removes the need for in-person checks.
• Can be more reliable at identifying fraudulent documents.
• Easier to roll out across multiple locations.

Limitations:

• Only available for British/Irish passport holders currently.
• Requires compatible software.
• Still need an in-person check on the first day to confirm the likeness.

By using IDSPs correctly, employers benefit from digital right to work checks while remaining compliant with the legislation. But they should not be relied on exclusively, and staff must be trained on procedures.

Online Right to Work Checks

The Home Office operates an online checking service that allows employers to view applicants' right to work details. This is used for:

• Biometric residence permit holders
• Biometric residence card holders
• Those with settled or pre-settled status under EU Settlement Scheme
• Frontier worker permit holders

The key steps are:

• Applicant generates share code through Home Office site to provide employer access to details
• Employer enters share code and applicant's date of birth on Home Office site
• Employer views right to work details - this is where the statutory excuse is established
• Save the profile page as PDF or HTML and retain for the duration of employment + 2 years

Advantages:

• No need to see physical documents
• Information comes directly from Home Office systems
• Easy to roll out across multiple locations

Limitations:

• Only works for those with BRP, BRC, EU settled status or FWP
• Still need in-person check on first day
• Share codes expire after 90 days if unused

Following the proper process allows employers to conduct compliant right to work checks online. 

Sanctions Against Illegal Working

The government takes a strict approach to deterring illegal working, with various civil and criminal sanctions. Key sanctions include:

Civil Penalties

• Fines up to £20,000 per illegal worker for employers who fail to do proper right to work checks.
• Penalty amount based on aggravating and mitigating factors.
• Can object and appeal penalties.
• May affect the ability to sponsor migrants or hold licences.

Criminal Offences

• Up to 5 years imprisonment and unlimited fines for knowingly employing someone not permitted to work.
• Up to 6 months imprisonment and unlimited fines for workers working illegally.

Business Disruption

• Illegal working closure notices to force temporary business closure.
• Compliance orders with special conditions to prevent further illegal working.
• Revocation of licences in high-risk sectors like private hire vehicles and alcohol retail.

Other Measures

• Seizure of illegal wages under Proceeds of Crime Act.
• Publication of civil penalty details to name non-compliant employers.
• Coordination between agencies like the Home Office and HMRC to detect illegal work.

The consequences of illegal working can be severe for both employers and employees. Following proper right to work procedures is critical to avoid falling foul of the rules.

Final thoughts

The UK has complex immigration and employment rules governing right to work checks. Employers must understand their legal obligations fully and take proactive steps to ensure compliance. This includes training staff on procedures, conducting in-person and digital checks, retaining copies of documents correctly, and taking appropriate action if someone is found illegally working.

Failing to do so could result in fines, business disruption, or even criminal proceedings. Employers can ensure a safe and compliant workforce by taking the necessary steps to protect organisations from illegal work.

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