As noted in my earlier article that can be accessed here, the temporary adjustments enabling employers to review documents electronically and check they belong to the individual presenting themselves for work will end today, on 30 September 2022. So, from 1 October 2022, how can an employer undertake a lawful right to work check to escape liability for a civil penalty by employing an individual who does not have the right to work?
Employers must do one of the following before an employee commences employment:
1. Manual right to work check
2. Right to work check using IDVT via the services of an IDSP
3. Home Office online right to work check
1. Manual right to work check
This involves three steps: obtaining original documents from List A or B of UKVI’s acceptable documents (accessible here); checking the documents are genuine and that they belong to the individual presenting themselves for work; and copying the documents in a format that cannot be altered. The copy should then be dated to confirm the date of the check, and the employer should retain the copy securely throughout the duration of employment and for two years afterwards.
When undertaking the check, the employer must be in receipt of the original document; the holder of the document can either be physically present at the same time or can be present via a live video link (if the worker would prefer to send their original documents for checking beforehand).
Only the original documents referenced on List A or List B of the Home Office’s above referenced guidance will be acceptable; since 6 April 2022, the list has not included Biometric Residence Permits, so employers cannot undertake a manual right to work check for the holder of a BRP.
2. Using Identity Document Validation Technology (IDVT) via the services of an Identity Service Provider (IDSP)
IDSPs were introduced from 6 April 2022; since this date, employers can use IDVT technology to complete a digital identity verification right to work check. IDVT technology can only be used for British and Irish citizens who hold a valid passport or an Irish passport card. The certified IDSPs that can provide this service are confirmed on the GOV.UK website.
Even though the check will be undertaken via an IDSP, employers must still be satisfied that the photograph and biographic details listed on the check are consistent with the individual presenting themselves for work. Once again, employers must retain copy documents relating to the check throughout the duration of employment and for 2 years after the employment has come to an end.
3. Home Office online right to work check
Individuals that hold an eVisa and can only use the online service to prove their immigration status, and those that hold a Biometric Residence Card (BRC), Biometric Residence Permit (BRP) or Frontier Worker Permit (FWP) must evidence their right to work via a Home Office online check. The worker will either ask that a 9-character long share code beginning with ‘W’ is emailed to their prospective employer (emailed from right.to.work.service@notifications.service.gov.uk), or will provide the code direct. The employer can then use the code to undertake an online check here. In addition to holding the share code, an employer will also need the worker’s date of birth to access the necessary information online.
The employer must then check that the photograph online is of the individual presenting themselves for work and retain evidence of the check (this must be the page confirming the person’s right to work). The information should be stored securely, and must be held for the duration of employment and 2 years afterwards.
Employer Checking Service
In some circumstances, an individual who may have permission to work cannot provide their prospective employer with the necessary documents. This may be, for example, if they await a decision on an in-time application submitted to the Home Office. In this scenario, an employer will need to contact the Home Office’s Employer Checking Service (ECS) to ask for information about the worker’s permission to work.
Follow-up Checks
Employers must remember that follow-up checks are necessary if a worker has time-limited permission to work in the UK. The follow-up check must be undertaken before the worker’s existing permission to remain expires.
Examples
An individual presents a vignette contained in their passport which is valid for 90 days and confirms that they hold leave to enter as the partner of a British citizen. On the day they present themselves for work, they have not yet collected their Biometric Residence Permit, so cannot provide a share code for an online check.
A vignette (an endorsement in a passport) is an acceptable document contained on List B. Therefore, a manual right to work check can be undertaken by checking the original passport/vignette, either in the presence of the worker or via a live video link. The right to work check must then be repeated prior to the expiry of the vignette. By this time, the worker will likely have their Biometric Residence Permit, so an online right to work check must be undertaken.
A British passport holder will be working for you remotely. They don’t want to post their original passport to you and are unwilling to attend an in-person meeting with you. Can they commence work?
As mentioned above, manual right to work checks must be undertaken for British nationals. If the worker is not willing to post or courier their original passport to you and cannot attend the workplace in-person with their original document, a manual right to work check cannot be undertaken. IDVT may be used via the services of an IDSP, but you must still be satisfied that the information provided relates to the individual presenting themselves for work.
A citizen of Portugal presents themselves for work and provides their original Portuguese passport. Is this sufficient?
No; an EU passport is no longer an acceptable document for a manual right to work check. In light of Brexit, the worker may hold status under the EU Settlement Scheme (EUSS). If they do, they will have
an online UKVI account. Through this account, they can generate a share code, so that an online check can be undertaken via the Home Office website.
Finally, remember that some individuals have conditions attached to their permission to work (students, for example), so it is important that organisations understand the conditions, and ensure that the worker is not in breach of their work conditions.
The rules surrounding right to work checks are complex, but are very important as organisations can face a penalty of up to £20,000 per worker if found to be employing workers who do not have the right to work. Latitude Law’s specialist team helps many organisations with their right to work enquiries and can provide training to your organisation. If you would like to speak to one of our experts concerning the right to work or sponsoring workers, call us now on 0161 234 6800 or complete our online enquiry form.