A Guide for Sponsor Licence Holders on Right-to-Work Checks – Rule Changes on the 1 October 2022

Over the last few years, there have been various concessions and rule changes on right-to-work checks. The latest changes come into force on 1 October 2022. Our immigration solicitors and Sponsorship Licence lawyers are gearing up to answer questions on the rule changes. In this article, we look at the new rules on right-to-work checks and explain the importance of complying with illegal working legislation for UK business owners and sponsor licence holders.

UK Online and London Based Immigration Solicitors and Sponsorship Licence Lawyers

For advice on sponsor licences and immigration law call OTS Solicitors on 0203 959 9123 or contact us online.

The right-to-work rule changes

The Home Office COVID-19-related concessions on the conduct of right-to-work checks end on 30 September 2022.  UK employers will no longer be able to complete adjusted right-to-work checks by checking scanned documentation during video calls.

Why are the changes to the right-to-work checks important?

All employers should comply with the law and the carrying out of right-to-work checks on all new employees is part of the law that is designed to prevent illegal working. This law affects all UK employers as right-to-work checks are necessary on all new employees, regardless of their nationality or immigration status. However, if your company holds a sponsor licence you may be at greater risk of falling foul of the right-to-work checks.

Failure to carry out right-to-work checks, or to carry them out properly, risks the imposition of a civil penalty of up to £20,000 per breach of the law if your company is found to be employing an illegal worker.

If your business can show that you conducted a compliant right-to-work check you have a statutory excuse if it is subsequently discovered that the skilled worker didn’t have the right to work in the UK. The point is that the right-to-work check must be compliant at the time it was conducted so it is important to adjust your right-to-work check procedures in light of the 1 October 2022 rule changes.

In addition to a potential £20,000 fine, a UK employer risks:

• Criminal liability
• Director disqualification
• Reputational damage through the Home Office publishing a list of businesses, on a regional basis, of those businesses subject to civil enforcement action

If your company also holds a sponsor licence you risk the suspension or revocation of your sponsor licence. In practical terms, if your sponsor licence is suspended, you cannot sponsor any new sponsored workers. If your sponsor licence is revoked you cannot continue to employ your existing sponsored workers. They will need to leave your employment and either need to leave the UK or find new employment with a new sponsor licence holder.

If a sponsor licence is revoked there is a cooling-off period before your company can reapply for a new sponsor licence. The cooling-off period is a real deterrent as losing your sponsored workforce and not being able to re-recruit them, or employ new overseas workers on work visas, threatens business continuity and your ability to comply with your existing contractual obligations.

Right-to-work checks after the 1 October 2022

After 1 October 2022 right-to-work checks can no longer be conducted remotely. They can only be conducted by:

• Manually checking original documents in presence of the new employee (or an employee who needs a repeat right-to-work check as they only have a time-limited leave to remain)
• Online checks – these are mandatory in some situations and are carried out through the Home Office online checking service
• Using the services of an identification service provider (IDSP) who uses identity document validation technology (IDVT) to validate a person’s right to work

You may also need to verify a prospective or current employee’s status with the Home Office’s employer checking service (ECS).

Sponsorship Licence lawyers emphasise that it is essential that right-to-work checks are carried out at the right time. You cannot obtain a retrospective statutory excuse by carrying out the right-to-work check late or by re-doing the right-to-work check because you did not follow the correct procedure at the time the original check was completed.

After checking the documents, you need to copy and record and retain them by the rules.

Getting right to work checks right

Getting the right-to-work checks right can be complicated as the type of check you need to undertake, and the documents you need to see depend on the immigration status of the person you are conducting the right-to-work check on.

For example:

• If the person has a biometric residence permit or card the online check must be used whilst conducting the right-to-work check in person
• If the person has settled status under the EU Settlement Scheme the online check must be used whilst conducting the right-to-work check in person
• If the person does not qualify for an online check, such as a British passport holder, the right to work check must be carried out using an accredited IDSP provider or you can conduct a manual check with the person and their original documentation

Remote checks stop on 30 September 2022. If you carry out your right-to-work checks remotely after that date, they will not be compliant and importantly you will not get the protection of a statutory excuse if the employee is later found to be an illegal worker.

Right-to-work documentation

If your business is checking a new employee’s right to work in the UK manually you need to see if the documents you are checking are genuine and match to the employee. This may mean checking photographs are consistent with the employee or that the stated date of birth in the paperwork matches the person. Whilst you cannot age check precisely if your employee looks as if they are in their 20s, alarm bells may ring if the documents presented are for a person whose date of birth puts them in their 50s. Copies of the checked documents should be retained to evidence that you conducted the right-to-work check.

Online right-to-work checks for sponsored employees

For an employer to use the Home Office online right-to-work check for sponsored employees, the employee has to supply their date of birth and share code for the right-to-work checking service. The free Home Office online service can be used where the recruit has a biometric residence permit or card number, a passport or a national identity card.

UK Online and London Based Immigration Solicitors and Sponsorship Licence Lawyers

For advice on sponsor licences and immigration law call the immigration lawyers at OTS Solicitors on 0203 959 9123 or contact us online.