It is of utmost importance for employers to perform proper and compliant right to work (RTW) checks to confirm an individual's right to work before they commence their employment.
The UK government guidance on right to work checks, if implemented correctly, provides a statutory excuse (legal protection) against an illegal working civil penalty if found to be employing illegal workers in the UK.
The UK Government announced plans to raise fines for employers who hire individuals without legal immigration status.
The Home Secretary announced these forthcoming changes, which are scheduled to be implemented in early 2024, although the exact start date remains uncertain. Currently, the fine for employing someone without the right to work is £20,000 per illegal worker. Under the new rules, this fine will increase to a maximum of £45,000 for first-time offenders, and for repeat offenders, the maximum fine will rise to £60,000 per illegal worker employed.
These substantial fine increases will significantly impact the cashflow and operations of businesses found to be in violation of these rules. Employers must take steps to ensure full compliance with the requirements for conducting right-to-work checks.
In compliance with the Home Office guidance on RTW checks, there are three ways to conduct RTW checks:
- Manual Right to Work checks
- Digital Right to Work checks
- Online Right to Work checks
Selecting the appropriate method for each employee depends on various factors, including the employee's nationality and immigration status. Employers should make every effort to assisting individuals in providing proof of their right to work.
Manual Right to Work Checks
Manual checks involve meeting the individual in person and verifying their physical documents. If in-person verification is not possible, employers can perform online checks on the Home Office website.
Employers must follow three steps before an individual starts working:
- Obtain: Collect original documents from the candidate
- Check: Verify the authenticity of the documents and ensure the person is authorised to do the work
- Copy: Maintain an unaltered copy of each document securely during employment and for two additional years
Online Right to Work Checks
Online checks can be done using the Home Office's online service. However, not all prospective workers can be checked online. Some may lack eligible immigration status, and in such cases, manual checks are required.
Digital Right to Work Checks
From 6 April 2022, employers can conduct remote digital checks for British and Irish citizens with British/Irish passports or Irish passport cards. These checks use Identity Document Validation Technology (IDVT) to confirm identity. Employers must ensure they comply with all statutory requirements for these checks to obtain a statutory excuse. If an IDSP (Identity Document Validation Service Provider) is used, the employer must check a digital copy of a physical document to confirm its validity and ownership.
Employer Checking Service
For individuals who cannot provide valid documentation or use online checks due to pending applications or appeals, the Home Office provides a free online service that employers can use to conduct Right to Work checks.
These different methods and requirements help employers ensure that their employees have the legal right to work in the UK, while also preventing discrimination and maintaining compliance with the law.
Third Party Checks
Since April 2022, employers have the option to delegate right-to-work checks to IDSPs for British and Irish passport holders and valid Irish passport card holders. It is crucial to understand that outsourcing these checks does not shift the legal responsibility to the third party. The IDSPs must perform the checks according to legal requirements, however, a business will remain accountable for ensuring that the checks are conducted correctly and that the digital check matches the employee's identity when they start working.
While outsourcing this task might seem convenient, it can introduce complexities that affect the entire business. Therefore, it is imperative for organisations, particularly HR departments and senior management, to stay updated with Right to Work regulations and ensure thorough checks of each individual's identity and right to work status.
Here at Clarkslegal, we provide right to work training and a right to work check verification service to minimise exposure to risk, please get in touch with our UK Immigration Team should you require further help.