As a reminder, from 6 April 2022, right to work checks changed for those who hold a Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP). Employers are no longer permitted to conduct manual right to work checks on these individuals and will need to use the Home Office’s digital right to work check service. Simply checking an employee’s physical document is now insufficient to establish the statutory excuse against illegal working
In addition, for anyone outside the scope of the online right to work check system, such as British & Irish citizens, the Home Office have announced that employers will be able to use certified Identification Document Validation Technology (IDVT) from April 2022 to carry out digital identity checks.
What is the statutory excuse and why is it important?
The statutory excuse can be used to defend an employer against a civil penalty of up to £20,000 per employee, if it subsequently transpires that the employer is found by the Home Office to be employing an illegal worker. It can only be obtained if an employer carries out an appropriate right to work check before the employee’s first day of employment.
In addition to the financial cost of a civil penalty there are other significant repercussions for an employer in failing to carry out a proper right to work check. This ranges from reputational damage (the Home Office publishes details of offending employers) to a detrimental impact on its ability to obtain and keep a Sponsor Licence and consequently recruit migrant workers.
The changes continue the direction of travel by the Home Office towards the digitalisation of the right to work process. The new legislation permits employers to use certified digital identity service providers (IDSP’s) to carry out identity checks on their behalf for those individuals who are not in scope to use the Home Office Online service. This includes non-migrants, British and Irish citizens, for whom employers cannot currently undertake an on-line check because they do not appear in the Home Office’s records.
Of course, during the pandemic the Home Office temporarily permitted “adjusted right to work checks” which meant employers were able to check identity virtually via a scanned document and a video call. This is due to end on 30 September 2022.
Had the new system not been introduced, we would have seen a complete return to the manual right to work checks, so this is welcome news for employers who can continue to check identity remotely using an IDSP, should they wish to. However, note this only applies to individuals who are not holders of BRP, BCP or FWPs who as stated above must be checked against the Home Office’s digital system.
There is still limited information on the new system, but it appears that there will be a charge for the each check of between £1.45 and £70. However, employers wishing to avoid the charge will continue to be able to check identity manually for non-migrant workers.
The Home office has updated its “Employers Right to Work Checks Supporting Guidance” to state that employers using the new service must provide appropriate training to their staff on what information they must obtain from the IDSP and there are obligations that must still be fulfilled by the employer under this service – for example, it is still the employer’s responsibility to ensure that the IDSP is certified to the required standard.
What do employers need to do now?
If you carried out a right to work check before 5 April 2022, you are not required to carry out retrospective digital checks. However, in order to establish a statutory excuse from 6 April 2022, the right to work check will need to be carried out via the Home Office online service for BRP, BRC or FWP holders. For all other individuals, the right to work check will either need to be carried out manually by the employer or digitally via a certified IDSP.
Training is essential
Due to the potential significant repercussions of getting it wrong - it is vital that employers ensure their managers are fully trained on the new rules and take steps now to ensure their on boarding processes are compliant.
Our experienced immigration and employment practitioners can provide training for HR and managers on the new rules. For advice or assistance please contact Claire Taylor-Evans, Senior Associate on [email protected]
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.