Upcoming changes to right to work checks

In order to establish a statutory excuse to illegal working penalties, employers in the UK must check that job applicants are allowed to work in the UK before employment starts.

The Home Office provides detailed guidance around right to work checks, which can be found here: https://www.gov.uk/government/publications/right-to-work-checks-employers-guide

The guidance has recently been updated as part of a drive towards a digitised immigration system and employers should familiarise themselves with the changes to ensure they are following the correct process to avoid facing civil penalties (including fines up to £20,000) if they employ an illegal worker without having carried out the correct checks.

From 06 April 2022, all UK employers must conduct an online right to work check when checking a new recruit’s right to work where they hold any of the following documents:

• Biometric Residence Permit (BRP) cards, which are issued to individuals holding a visa of six months or more.
• Biometric Residence Card (BRC), which are issued to non-EEA family members of an EEA citizens.
• Frontier Worker Permits (FWP).

This means that employers cannot accept or check a physical BRC, BRP or FWP as proof of right-to-work.

Up until 06 April 2022, employers can continue to check the above right-to-work documents manually and there is no requirement to perform a retrospective online check for employees with the relevant documents if they started work prior to 06 April 2022.

To be able to conduct online right-to-work checks, employers must:

1. Obtain a share code from the new recruit;
2. Use the Home Office online right-to-work checking service (which can be found here);
3. Be satisfied that the photographs on the online right to check is that of the new recruit; and
4. Retain a clear copy of the response provided by the online right to work check on the new recruit’s personnel file (stored in accordance with the relevant GDPR considerations) for the duration of employment and for two years after employment ends.

Employers will still be able to conduct manual checks for other workers who do not hold BRPs, BRCs or Frontier Worker Permits (for example British nationals providing their passports) and the Government has once again extended the right to carry out the COVID-19 ‘adjusted’ right-to-work checks using virtual methods until 30 September 2022.