Updated Right to Work Procedures

Updated Right to Work Procedures

Key Contact: Claire Knowles

Author: Adam McGlynn

Since 1 October 2022, employers must undertake right to work checks in one of three ways:

1. The Home Office’s online checking service for workers holding a Biometrics Residence Permit (BRP), Biometrics Residence Card (BRC) or a Frontier Work Permit (FWP);
2. An in-person check of an appropriate original document set out in List A or List B; or
3. Using a third-party Identification Document Validation Technology (IDVT) identity check.

These processes replace the more flexible measures that were introduced in March 2020 by the Home Office that permitted employers to conduct right to work checks remotely over a video call.

Failure to carry out the correct procedures will expose employers to penalties of up to £20,000 and are like to adversely affect the status of any existing sponsorship licence (and therefore to the workers sponsored in accordance with that licence). Those who knowingly employ individuals without permission to work also face criminal sanctions.

Employers who later discover that an individual’s permission to work in the UK was evidenced through a fraudulent document will be relieved of any fine provided the initial right-to-work check was undertaken properly (often referred to as a ‘statutory excuse’).

The checks must be carried out before the commencement of employment, and the evidence gathered of lawful rights to work must be retained for the duration of employment plus two years, with repeat checks for those with temporary work permissions.

Online checks

With many organisations still operating remotely, the Home Office’s online checks will often be the more attractive offering (as with the manual checks, the online checks are free of charge). There are two types of online checks:

1. Workers with BRPs, BRCs and FWPs must generate a Home Office share code which they must pass onto their employer. The employer will use that share code to generate an online right to work profile tailored to the individual, which can be saved or printed, and held securely as evidence of permission to work. Employers cannot accept physical cards for the purposes of a right to work check.
2. Employers must use the Home Office’s separate Employer Checking Service to establish a statutory excuse in the following circumstances:

• Individuals who have applied to the EU Settlement Scheme
• Workers who have claimed asylum and have been granted a valid Application Registration Card which permits the holder to work
• Those with temporary work permissions who have applied to extend their leave before the expiry of their previous leave but have not yet received a response to their application (including those who have challenged Home Office decisions and have an appeal or administrative review pending)
• Individuals who arrived in the UK before 1988.

Alternatively, employers can undertake an IDVT check by paying a fee to a commercial provider approved by the Home Office.

Please contact our employment team with any questions on the new legal requirements.