U.K. Update: Changes to Right to Work Checks

On 6 April 2022, the Home Office updated the codes of practice on preventing illegal working. All “Right to Work” (RTW) checks must now be conducted in conformity with the updated codes. Below is a summary of the methods of conducting the checks that are now available to employers conducting RTW checks.

RTW checks must be conducted for all prospective employees, irrespective of their nationality or immigration status. The checks must be conducted before employment commences in the U.K.

RTW checks may be conducted using one of the three methods listed below:

1. A Manual Document-Based Check

   Step 1: Obtain the original version of one or more of the acceptable documents.

   Step 2: Check the documents in the presence of the holder.

   Step 3: Make clear copies of the documents, retain the copies, include on the copy a record of the date on which the check is made. For example, “the date on which this right to work check was made: [insert date] at [insert time].” We would also recommend that it be signed by the company employee who undertook the check on behalf of the employer.

   Employers should carefully check the genuineness of the document presented to them. If an employee is found to be working illegally, the employer will be liable if it was reasonably apparent that the documents were false.

   If the individual has a time-limited permission to be in the U.K., then the check must be repeated before the expiry of the permission. During the check, the employer must establish whether the employee is applying for an extension to their permission.

   For employees with indefinite permission to live and work in the U.K., e.g., British citizens, a continuous statutory excuse will be established, and the check will not need to be repeated.

2. A Check Using the Services of an Identity Service Provider (IDSP)

   Employers will imminently have the option to use the services of an approved IDSP to conduct the RTW checks for British and Irish citizens who hold a valid passport. The IDSP will obtain evidence of the employee’s identity and check the validity of the document they are presenting to the employer.

   The employer must be satisfied that the information received from the IDSP is consistent with the individual presenting themselves for work. The employer must retain a clear copy of the evidence showing the check has been conducted.

   Checks conducted in this manner provide the employer with a continuous statutory excuse.

   Manual RTW checks must be conducted for British and Irish citizens who only hold an expired passport.

   At the time of writing, the U.K. government is yet to release a list of approved Identity Service Providers.

   Some employers have expressed concern regarding the potential costs of using these services. However, the government believes this new method will be innovative, secure and will reduce the time employers take to conduct the checks.

3. A Home Office Online Check

   Home Office online checks are the only method of conducting the checks for holders of Biometric Residence Cards (BRC), Biometric Residence Permits (BRP), Frontier Worker Permits (FWP) or eVisas, and for individuals endorsed with pre-settled or settled status under the EU Settlement Scheme. Employers cannot conduct manual checks for these individuals.

   The employee must access this website to obtain a code to share with their employer. The code is needed by the employer to gain access to the employee’s information.

   The employer accesses this website, where they enter the code shared with them by the employee, and view evidence of the employee’s immigration status. The employer must be satisfied that the information obtained from the online check is consistent with the individual presenting themselves for work.

   The employer must retain copies of the information obtained during the check.

   Please note there will be occasional situations where a manual check must be conducted for a foreign national, e.g., whilst the individual is awaiting the delivery of their biometric permit and they only have an Entry Clearance visa vignette as evidence of their status or where the individual has only been issued an Entry Clearance visa vignette due to the duration of their permission being of six months or less.

Home Office’s Employer Checking Service

The Home Office’s employer checking service is a supplementary tool for obtaining evidence of a prospective employee’s RTW in the U.K.; it is available to use where a prospective employee has an outstanding immigration application, a pending appeal or administrative review, or if their immigration status requires verification by the Home Office, e.g., individuals who arrived in the U.K. before 1989 and do not have the documents to prove their RTW. The employer using this service will receive a “Positive Verification Notification” from the Home Office if the applicant does indeed have the RTW. This will provide the employer with a statutory excuse for a period of six months.

Ukrainian Nationals

The Home Office has introduced a range of visa schemes to support Ukrainian nationals currently fleeing the ongoing conflict. An individual granted a visa through one of these schemes is able to work in the U.K. Due to the nature of the visa schemes, the documents available to Ukrainian nationals wishing to evidence their RTW in the U.K. under one of the visa schemes will slightly differ from other non-U.K. nationals, e.g., some individuals are being granted the right to travel to the U.K. and apply to one of the available schemes within six months of their arrival and these individuals will only have a passport to evidence their RTW during their first six months in the U.K. or until their visa applications are approved.

Ukrainian nationals can use the following documents to evidence their RTW:

• A Biometric Residence Permit
• A valid Ukrainian passport with an Entry Clearance visa vignette stamped by a U.K. border official
• A valid Ukrainian passport stamped by a U.K. border official
• Form for Affixing the Visa (FAV) in conjunction with a Positive Verification Notice (PVN) from the Employer Checking Service
  • These documents will be given to individuals who applied without a valid Ukrainian passport

*RTW checks conducted with a Ukrainian passport or a FAV with PVN must be repeated once the employee has received a Biometric Residence Permit.

All documents use to conduct a RTW check, regardless of the method of the check, must be retained throughout an individual’s employment and for a period of two-years after they have ceased to be employed by the employer.

The government previously adjusted the way RTW checks are to be conducted due to the COVID-19 pandemic, employers are currently permitted to carry out the checks via a video call. These measures will remain in place until 30 September 2022.

Failure to carry out the checks may result in the employer being issued a civil penalty of up to £20,000 per illegal worker, a criminal conviction, and the business may be forced to close.

Employers are not required to carry out retrospective checks for employees who commenced their employment before the codes were updated.

The information in this article should not be considered legal advice, please contact one of our qualified professionals if you require assistance.