UK organisations need to perform a right to work check to ensure applicants are eligible for employment before they can start their role.
Employers that fail to do this could face civil penalties if they are found to have employed an illegal worker without carrying out a proper right-to-work (RTW) check.
At the moment there are two key routes for checking a candidate’s right to work.
An employer can check right to work by asking for a share code from the applicant so that they can prove their eligibility online, or they can check the applicant’s original documents.
A manual check requires one document from each of the Home Office’s lists of acceptable documents: these include passports, immigration status documents, birth or adoption certificates and certificates of naturalisation.
During the Covid-19 pandemic, temporary changes meant that employers could ask for documents digitally and check them on a video call instead of in person.
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However, from 1 October 2022, these adjusted RTW checks will no longer be accepted, and the government recommends employers use a Digital Identity Service Provider (IDSP) that uses Identity Document Validation Technology (IDVT) to validate an applicant’s proof of right to work.
When should a check be carried out?
An employer needs to carry out a compliant check before someone starts their new role, or they could face a penalty. As right to work UK rules are evolving, there is no requirement to carry out retrospective checks for staff already employed before 1 July 2021.
Right to work documentation
If checking an applicant’s right to work in the UK manually, employers need to check that documents are genuine and that the person presenting them is the prospective or existing employee. This includes checking photographs and dates are consistent across documents and that they match the person’s appearance.
They must also consider expiry dates and whether there may be any reasons for differences in names, such as marriage or divorce. Any evidence the documents have been tampered with should also raise alarm bells. Organisations should make a copy of passports and other documents and keep these on file, as well as retain a secure record of when they made the check.
Under the adjusted process, job applicants and existing workers can send scanned right to work documentation or a photo of their documents using email or a mobile app, or these checks can be carried out over a video call.
Using an Identity Service Provider (IDSP)
Temporary adjustments to RTW checks will end on 30 September 2022, but the government has responded to employers’ desire not to return to mandatory in-person checks. To this end, in place of adjusted RTW checks, employers are encouraged to use certified IDSPs to acquire proof of right to work from British and Irish citizens. IDSPs complete the documentation checks on behalf of employers for a fee. The RTW check involves submitting digital images of personnel documents that are then checked by IDVT.
Right to work checks for migrant workers
From 6 April 2022, employers can use online right to work checks for foreign nationals who have a biometric residence card, residence permit or frontier work permit. The applicant must provide their date of birth and a share code for right to work from the Home Office to their prospective employer, which can then check their gov right to work by entering the code into the government’s free online checking service on the right-to-work gov.uk website. The Home Office right to work process requires individuals to have a biometric residence permit number, a biometric residence card number, a passport or national identity card.
Manual right to work in UK checks are no longer permitted for foreign nationals with biometric proof of right to work or a frontier work permit, although employers do not have to do a retrospective check if a manual check was completed before 5 April 2022.
What is a right to work share code?
Migrant workers can prove their eligibility for employment by providing their employer with a UK right to work share code. This includes workers from the EU, European Economic Area or Switzerland who must obtain evidence of lawful immigration status since post-Brexit immigration rules came into force in July 2021.
These employees should have biometric proof of their right to work or a frontier work permit and also a UK Visas and Immigration Account, which they should keep up to date. As part of this they are able to scan their identity documents into the government database using their phone.
If an employer wishes to check an applicant’s immigration status and to view right to work from one of these areas, they can use the government’s online right to work UK checking service by inputting a share code from their prospective employee.
Getting an employer right to work check wrong
The Home Office has recently hiked fines for employing migrant workers illegally. Failing to ensure someone has the right to work in UK could now result in an organisation receiving a civil penalty of up to £45,000 for each worker, rising to £60,000 for repeat breaches.
Employers could also be at risk of five years in prison if an individual is found guilty of employing someone they knew or had reasonable cause to believe did not have the right to work in the UK.
This could include if they had reason to believe someone did not have permission to enter or remain in the UK; that their leave had expired; that they were not allowed to do certain types of work; or their papers were incorrect or false.
Businesses can also be penalised if they employ someone who does not have the right to work and they did not carry out the correct online right to checks or manual RTW checks properly.