All employers have a legal obligation to comply with the prevention of illegal working in the UK.
This means that basic documentation checks should be done on every UK-based employee to verify they are allowed to work legally. For best practice, employers should enforce a robust recruitment and onboarding process where thorough checks are conducted on all prospective employees, regardless of nationality, race or ethnicity. It is important to point out that these checks must be unbiased to avoid discrimination.
All UK employers have a responsibility to avoid employing illegal workers. By carrying out appropriate document checks, employers may protect themselves from civil penalties and prosecution.
From 6th April 2022:
- employers must complete their right to work checks using the Home Office’s online checking system for individuals holding a current Biometric Residence Permit (BRP), Biometric Residence Card (BRC), status under the EU Settlement Scheme (EUSS), Frontier Worker Permit (FWP). Employers must also confirm the individual’s identity on a video call or in person.
- This online right to work check will be the only acceptable method for individuals holding such documents listed above.
- Retrospective checks will not be required on biometric card holders who used their physical documents to demonstrate their right to work. Employers can maintain a statutory excuse against a civil penalty if they conducted initial checks in line with the guidance that applied at the time the check was made.
Employers can no longer accept physical BRPs, BRCs or FWPs as evidence of the right to work. This applies even where such a document states a later expiry date.
Employers must follow these right to work requirements from today for new joiners in order to establish a statutory excuse against a civil penalty. These checks must be carried out before new employees start work and have the permission to work here.
The Home Office guidance clearly sets out employers’ duties for undertaking a MANUAL RTW check in three key steps:
Step 1: Obtain
Employers must obtain original documents from either List A or List B of acceptable documents at Annex A of the Home Office right to work policy guidance.
Step 2: Check
Employers must check that documents provided are genuine and that the person presenting them is the rightful holder and legally permitted to do the type of work you are offering.
Step 3: Copy
Clear copies (electronic or in hardcopy) of each document in a format which cannot manually be altered must be kept and retained securely. If you write a date on the copy document, you must also record that this is the date on which you conducted the check.
Employers must also copy and retain copies of:
- Passports
- Biometric Residence Permit, Application Registration Card and a Residence Card (biometric format).
All copies of documents taken should be kept securely for the duration of the worker’s employment and for two years afterwards. The copy must then be securely destroyed.
The “new” online service differs from the above and the following process must be undertaken
Step 1: Use the Home Office online service
The individual provides a Share Code
To check the person’s right to work details, you will need to:
– access the service ‘View a job applicant’s right to work details’ via GOV.UK
– enter the ‘share code’ provided to you by the individual, and
– enter their date of birth
It is not sufficient to simply view the details provided to the individual on the migrant part of the service and doing so will not provide you with a statutory excuse.
Step 2: Check
You must check that the photograph on the online right to work check is of the individual presenting themselves for work
Step 3: Retain evidence of the online check
You must retain evidence of the online right to work check. For online checks, this should be the ‘profile’ page confirming the individual’s right to work. This is the page that includes
the individual’s photo and date on which the check was conducted. You will have the option of printing the profile or saving it as a PDF or HTML file.
Penalties for non-compliance
Failure to perform Right to Work checks correctly could result in unwanted Home Office scrutiny as well as:
- Civil penalty for illegal working – fine for up to £20,000 per breach
- Criminal prosecution or County Court judgment
- Sponsor Licence suspension or revocation
- Disqualification of company directors
- Inclusion on the Home Office’s civil penalty offender list
- Reputational damage which could result in business profits and client confidence
- Business forced to cease trading
Please contact us for any guidance or advice on our Right To Work and Compliance services.
