All employers in the UK have a responsibility to ensure individuals they hire have permission to work in the UK. This is done by conducting a right to work check before the individual commences employment.
The law on preventing illegal working is set out in sections 15 – 25 of the Immigration, Asylum and Nationality Act 2006. Under this Act, an employer may be liable for a civil penalty if they employ someone (on or after 29 February 2008) who does not have the right to undertake the work in question. Provided an employer has carried out a correct check-in line with the Home Office’s ‘right to work checks’ guidance and the code of practice, they will establish a “statutory excuse” under the Immigration, Asylum and Nationality Act 2006. By establishing a statutory excuse, employers will avoid being issued with a Civil Penalty of up to £20,000 in the event an employee is discovered not having the permission to work in the UK.
It has been announced by the Home Office that from 6 April 2022, employers must carry out an online right to work check for those who hold a biometric residence card, biometric permit, or frontier worker permit.
At present, there are three possible ways of carrying out the right to work check:
- Online right to work checks, where the employer can check the proposed employees right to work against the Home Office database.
- Manual right to work checks, where the employer inspects the physical ID documents.
- Virtual or ‘adjusted’ right to work checks (introduced during the pandemic) where a scan or photo of the ID is allowed instead of the physical document.
What is changing from April 2022?
- Migrants who have a standard work or residence permit can only be checked online, not manually. This applies to people with a biometric residence card, a biometric residence permit or frontier worker permit.
- Adjust right to work checks will no longer count, these were intended to act as a temporary concession during the pandemic and have been extended several times. This concession will end on 5 April 2022.
- A new system of digital checks will be introduced as an alternative to manual checks. This will still mean HR departments who are carrying out the right to work check will need to submit ‘images of their personal documents’ they will not necessarily have to bring in the original as the new ‘Identity Document Validation Technology’ can assess the validity and of the document from a copy.
It is worth noting, the new digital checks are aimed at British and Irish citizens. Online checks will not work for non-migrants – i.e. the majority of workers, because their information will not show up in Home Office records.
In conclusion, from 6 April 2022, right to work checks on most migrants will be online and free, and digital checks on British or Irish Nationals will be manual (and free) or digital (and may be charged for).
