Updated Guidance on Right-to-Work Checks

Posted onMarch 16, 2023

The guidance on right-to-work checks has been updated. The latest guidance advises UK employers on how to conduct a right-to-work check to establish a statutory excuse against liability for employing an illegal worker who doesn’t have the right to work in the UK.

In this blog, our immigration solicitors highlight the key points on the conduct of right-to-work checks.

UK Online and London-Based Immigration Solicitors

For advice on right-to-work checks and immigration law call OTS Solicitors on 0203 959 9123 or contact us online.

The key updates to the Home Office right-to-work guidance

The key changes to the Home Office right to work guidance include:

E-visas
BRP checks
Use of ID Service Providers (IDSPs)
Clarification of documents to be used for right-to-work checks

Right to work check options

To obtain a statutory excuse against a civil penalty in the event that an employer is found to be employing an employee who is working illegally, an employer must carry out a right-to-work check on every employee before they commence their employment.

The right-to-work check options include:

Manual right-to-work check – any employee can participate in a manual check of paperwork but employers are being encouraged to use digital checks where possible
Right-to-work check using Identity Document Validation Technology (IDVT) using an Identity Service Provider (IDSP) – this method is suitable for British and Irish citizens
Home Office online right-to-work check – this method is suitable for non-British and non-Irish citizens

To an employer, the advantage of using an IDSP or the Home Office online service is that there is no need to see, check and take a copy of the worker’s documents. There is therefore less chance of incorrectly completing a right-to-work check by admin staff not looking at the right paperwork or failing to copy a document or record and date the check.

Manual right-to-work checks

Manual right-to-work checks are prescriptive and involve strict adherence to the guidance and ensuring that HR staff see original documents from approved lists of acceptable paperwork.

The Home Office guidance says an employer must obtain original documents from either Home Office List A or B of acceptable documents. List A documents include paperwork like a current or expired passport or an immigration status document issued by the Home Office with an endorsement stating the person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, together with paperwork showing the person’s permanent National Insurance number and their name issued by a government agency or a previous employer. List B is then subdivided into 2 groups, depending on the circumstances of the employee.

Looking at the documents is only step one. That’s because the paperwork must be checked to ensure that the documents relate to the employee and that the paperwork allows the prospective employee to do the work they have been recruited for and is compliant with their visa conditions. For example, whilst an international student can work in the UK whilst in the UK on a student visa, they are unable to work on a full-time basis.

The Home Office guidance says the person carrying out the manual right-to-work check must check that the:

Photographs and dates of birth are consistent across the paperwork and with the employee’s appearance
The paperwork is still in date – entry clearance has not lapsed
Work restrictions will not prevent the employee from undertaking the work on their job description
The paperwork has not been tampered with
Any obvious issues are spotted and dealt with. For example, if the employee’s documents are all in their maiden name the HR staff may need to see the marriage certificate to evidence the change of surname

Any documents seen in support of the right-to-work check must be copied and retained. The Home Office guidance is detailed enough to explain the precise requirements for copying a document such as a passport. The copy must be made in a format that cannot be manually altered. The copies can be kept as hard copies or digitally but it is also essential to record the date of the right-to-work check. That’s because statutory protection is only provided if the check is carried out before the commencement of the worker’s employment.

E-visas and BRP right-to-work checks

For workers with an eVisa or those with Biometric Residence Cards (BRC), Biometric Residence Permits (BRP), or Frontier Worker Permits the right-to-work check must be conducted using the online service. This means a manual check can't be completed by the employer.

The guidance says an employer should not assume that BRPs with an expiry date of 31 December 2024 were issued in error and that the online right-to-work check should display the correct expiry date of the worker’s right-to-work.

Use of ID Service Providers (IDSPs)

Employers can use IDSPs to conduct right-to-work checks on British citizens and Irish citizens and receive a statutory excuse against liability for employing an illegal worker. However, an employer doesn’t get the benefit of a statutory excuse if they use an IDSP to conduct manual or online checks of a recruit who isn’t a British citizen or an Irish citizen.

Therefore, the complete outsourcing of all right-to-work checks to an IDSP is not recommended and employers should conduct the right-to-work checks on all employees who are not British or Irish citizens.

It is the employer’s responsibility to obtain the right-to-work check from the IDSP. This is an important point as an employer only has a statutory excuse if they reasonably believe that the IDSP carried out the check following the Home Office guidance.

If a right-to-work check is carried out using the services of an IDSP on a British or Irish citizen the employer establishes a continuous statutory excuse and there is no requirement to see physical documents or to conduct additional right-to-work checks.

Conducting a right-to-work check using an IDSP

The Home Office guidance recommends that if an employer is using an IDSP to carry out its right to work checks that it:

Uses an IDSP that is a certified provider – this isn’t mandatory but business immigration solicitors say it is best practice to do so to minimise the risk of problems. The government has a list of certified IDSP providers
Checks the worker information (such as date of birth or photo) against the IDVT check to make sure there is consistency
Keep a copy of the IDVT identity check for the length of the worker’s employment and 2 years after their employment has ceased

Conducting a Home Office online right-to-work check

The Home Office online right-to-work check cannot be used for all prospective employees but must be used for some individuals, such as those with an E-visa or those with biometric residence permits. The check involves the recruit providing the employer with a share code so the employer can access information about the prospective employee’s immigration status and right to work.

The online check involves positive action as an employer should satisfy themselves that any photograph on the online right-to-work check is of the prospective worker. It is also necessary to keep a copy of the online right-to-e check, either digitally or physically in an HR or other file. The check needs to be stored for the duration of the worker’s employment and 2 years after they end their employment.

The Home Office employer checking service

If an employer can't use online or other means to carry out a right-to-work check then it may be necessary to use the Home Office employer checking service. The service can help where other means to check the right to work are not appropriate for the individual worker and their immigration status. Unlike a manual or online check where the results are immediate the results from using the Home Office employer checking service may take 5 days or so to come back.

UK Online and London-Based Immigration Solicitors

For advice on right-to-work checks and immigration law call OTS Solicitors on 0203 959 9123 or contact us online.

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