October 2022 changes to right-to-work checks – are you compliant?

by Cumbria Chamber

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As a result of the COVID-19 pandemic, the Government made temporary changes to the prevention of illegal working regime to allow employers to carry out right-to-work checks for new employees using scanned copies or photographs of their identification documents rather than original documents. Therefore, since March 2020, employers have been able to carry out right-to-work checks by video call, making these checks more efficient and convenient.

The duration of these temporary COVID-adjusted changes was extended several times but finally ended on 30 September 2022. As of October 2022, employers have no longer been able to carry out these checks remotely.

What do I need to do now?

Employers must now ensure they carry out one of the following checks before an employee starts employment. A period of induction is too late and will not give an organisation a statutory excuse against negligently employing an illegal worker. Checks must be undertaken before the employee commences work, and it is usually advisable to undertake these checks in the final recruitment stages.

For British and Irish citizens:

  1. a manual right-to-work check, i.e. obtaining, checking and verifying original documentation in person at a face-to-face meeting; or
  2. a right-to-work check using identification document validation technology via the services of an identity service provider (ISP).

For any prospective employee who holds a biometric residence card (BRC), biometric residence permit (BRP), has EU settled or pre-settled status, or a frontier worker permit (FWP), organisations must check their right to work online, using the Home Office online right to work checking service. Physical checks of documents are no longer permitted for employees with these types of permits and immigration permission. For any other non-British or Irish citizens without a BRC, BRP, EU Settled or pre-settled status or an FWP, employers are permitted to undertake a manual right-to-work check.

How should I carry out these checks?

The most straightforward option for most employers employing British or Irish citizens is likely to be a manual right-to-work check, and for many, this will be a return to the status quo. Employers carrying out checks this way should ensure that any documents produced by employees are identified on one of the Government’s lists of acceptable documents. They should also ensure that any copies of these documents taken are clearly marked as having been reviewed on a specific date and retained for future reference for the duration of the employee’s employment and two years after that.

For any non-British or Irish nationals who hold BRPs, BRCs and EEA nationals with settled or pre-settled status, employers must use the Home Office online Right to Work Checking Service. Employers should ask potential employees to provide their share code and date of birth for a check to be carried out this way. Employers will instead be able to undertake manual checks for any non-British or Irish citizen without one of the immigration documents listed above.

Larger employers or those who regularly recruit new staff members may choose to engage an ISP to carry out right-to-work checks. There are currently 17 ISPs, and costs for outsourcing these checks vary. For employers considering this method, it is important to note that the legal obligations to ensure the right-to-work checks comply with prescribed government guidance, in addition to any associated liability (up to £20,000 per illegal worker and potentially imprisonment in the worst cases), remains with the employer and cannot be passed to any ISP, so employers should seek to satisfy themselves that their chosen ISP will undertake right to work checks in line with government requirements and also that the employer reasonably believes the person is whom they claim to be.

Support and advice

Whichever method employers choose to use going forward for new employees, it is vital that your organisation’s recruitment processes are up to date and reflect these changes.

For support and advice on any of the issues covered in this article, or to find out how our expert Employment team can help your organisation, please contact either Tony McPhillips at 0191 211 7908 or tony.mcphillips@muckle-llp.com or Amy Sergison at 0191 211 7995 or amy.sergison@muckle-llp.com

© Cumbria Chamber of Commerce