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Changes to right to work checks

Overview

All employers must conduct right to work checks to ensure their employees have the right to work lawfully in the UK. Employers who fail to do so face potential fines and, in some cases, criminal liability. Checks must be conducted on recruitment for all employees before the individual starts work. Follow-up checks must also be conducted for employees on visas shortly before the visa is due to end.

What is the current position? 

Currently some right to work checks are conducted manually and some are conducted online. Right to work checks for British and Irish nationals must be conducted manually. In contrast, checks for non-British/Irish nationals (including EU nationals) depend on how their visa or status has been issued. Some visas are issued in a physical document, while others are issued electronically. The Home Office is moving towards issuing more and more visas electronically. Checks for visa-holders with status issued electronically must be completed online, whereas physical documents can currently be checked manually or online (where online checks are available).

What is changing?

From 6 April 2022:

  • employers will be required to carry out online checks for all visa-holders with a biometric residence permit (BRP), biometric residence card (BRC) or frontier work permit (FWP). In practice, this will be most visa-holders;

  • employers will no longer be allowed to conduct manual checks for employees with a biometric residence permit (BRP), biometric residence card (BRC) or frontier work permit (FWP). These will be removed from the Home Office's lists of documents which are acceptable for manual checks;

  • employers will have the choice to carry out digital checks for British and Irish nationals using a third-party service provider or continue with manual checks. Employers opting for digital checks will need to engage a certified identity service provider to do this and there will be costs involved. However, digital checks for this group will be optional rather than mandatory, and employers can continue to conduct manual checks for British and Irish nationals if they wish.

This is summarised in the table.

How are manual checks conducted?

For manual checks, the employer must physically see the candidate's right to work documents. Normally this involves seeing the original document in the presence of the individual or with the individual on a video call. However, during the pandemic, a concession was made to allow employers to view a scanned copy of the right to work documents (rather than the originals) with the individual on a video call. This concession is due to end on 30 September 2022.

The right to work documents produced by the individual must appear on the Home Office's lists of acceptable right to work documents. The employer must also retain a copy of the documents produced, along with a record of the date the check was conducted, and this must be kept on file throughout employment and for two years after it ends.

How are online checks conducted?

Where online checks are required, the employer verifies the individual's right to work online through the Home Office's online right to work service. The candidate first completes a short online form which produces a "share code" that is passed to the employer. The employer then inputs the share code and the candidate's date of birth into the online right to work service to view the applicant's right to work profile. The employer must check that the candidate's photo and details on their right to work profile match the candidate's appearance and details provided by them. The employer must also retain a copy of the profile page during employment and for two years after it ends.

How are digital checks conducted?

From 6 April 2022, employers can choose to conduct either manual or digital checks for British and Irish nationals. For digital checks, the employer will need to appoint a certified third-party identity service provider (IDSP). A list of certified identity service providers will appear on the Home Office website in due course. The IDSP will conduct the check, usually by asking the candidate to submit a photo and copy of their passport electronically (e.g. using a smart phone or tablet). The employer must retain a copy of the IDSP's output from the check and satisfy itself that the photo and biographical details (e.g. date of birth) are consistent with the candidate's appearance and details provided by them. This should be retained throughout employment and for two years after it ends.

Do we need to conduct retrospective checks once these changes are implemented?

No. Employers will have a statutory defence against civil penalties and fines if they have conducted a right to work check and retained evidence correctly under the rules in force at the time the check was carried out. Employers must carry out follow up checks for individuals on visas shortly before the visa is due to expire but otherwise do not need to repeat checks on existing employees when the rules change.

If you have any queries on the changes to the right to work regime, please do not hesitate to get in touch with your usual Employment contact.

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