What are the current rules?
Currently, employers have the option to carry out:
- A manual right to work check, by inspecting and retaining a copy of the physical document showing a candidate or employee’s right to work in the UK
- An adjusted Covid-19 right to work check, checking the physical document via video call
- An online right to work check
Employers cannot currently insist employees use the online service or discriminate against employees who are unwilling to do so. This will soon change as the right to conduct manual checks for some people comes to an end.
What’s changing?
From 6 April 2022, employers must carry out an online right to work check for those who hold a Biometric Residence Card (BRC), Biometric Residence Permit (BRP) or Frontier Worker Permit (FWP).
Manual checks for people holding these documents will no longer be allowed. This means that any manual checks for employees with these cards or permits from 6 April will not provide the employer with a statutory excuse against a penalty for illegal working.
Why is this happening?
The new technology which will be used to digitally carry out right to work checks is called the Identification Document Validation Technology (IDVT). It will be operated by certified identity service providers (IDSPs) on behalf of British and Irish citizens.
The government aims to reduce the time and money spent on recruitment processes by allowing those who use the IDSP to verify identities quickly. It also allows the IDSP to carry out checks at scale to benefit large recruitment campaigns that recruit a high number of new employees. The hope is that these developments will make the system more secure, quicker to complete, and better support remote working practices.
What is required from the visa/permit holder and from the employer?
The visa/permit holder will need to generate a right to work share code online and share this with their employer.
The employer will need the person’s share code and date of birth to check their right to work online. The online status will confirm whether the person has a right to work and when their leave expires.
It’s also worth noting that:
- Currently, BRPs have an expiry date of no later than 31 December 2024, even if the visa holder’s actual grant of leave expires after this date. So, employers who are currently completing a manual right to work check should schedule a repeat check at expiry of the BRP, even if the migrant’s leave is still valid.
- Retrospective checks will not be required where an initial right to work check was completed before 6 April 2022. If a retrospective check is carried out, and the employee does not have a right to work, then employers should take the appropriate action.
Are there any changes to the coronavirus adjustments?
The adjustments that were put in place due to the Covid-19 pandemic will currently remain in place until 30 September 2022. This includes allowing employers to conduct right to work checks ‘remotely’ instead of in-person.
This will of course no longer be possible for employees with BRP’s, BRC’s or FWP’s from 6 April but whether adjusted checks can take place for all other groups beyond this date remains to be seen. Given the Home Office’s enthusiasm for online methods though, it’s likely that some form of remote checking will be allowed in the long term.
How we can help
For each illegal worker employed, the employer is potentially liable to pay a fine of up to £20,000. Therefore, it is imperative that these right to work checks are conducted accurately. Our dedicated Business Immigration team know the rules and can help you follow the right to work guidance and avoid the excessive fines. To find out more about how we can support you, don’t hesitate to get in touch at a.christen@capitallaw.co.uk.
You’re also welcome to sign up (here) for our free online breakfast briefing on global mobility issues, taking place on 15 March 2022. We’ll give an overview of the implications of a globally mobile workforce, helping you understand where the risks lie and how to overcome them.
