Prepare your organisation for changes to right to work checks

This article was published on 17 February 2022 and updated on 14 March 2022.

A number of changes to right to work checks will take effect from 6 April 2022. It is important that employers adjust their processes as necessary to ensure compliance going forward.

Overview of checks and penalties

Depending on an individual’s type of immigration status and documentation, employers can undertake manual checks on documents or use a share code system to check an individual’s right to work. If an employer conducts a right to work check in the manner dictated by the Home Office, they can establish a statutory excuse from being liable for a penalty, should it be discovered that the individual does not have the right to work. Note that if an employer knows that an individual does not have the right to work, they will not benefit from a statutory excuse from civil penalty.

Civil penalties can be up to £20,000 per illegal worker.

Share code system mandatory for Biometric Residence Permits

From 6 April 2022, employers must use the share code system when checking the right to work of Biometrics Residence Permit holders, Frontier Worker Permit holders and Biometric Residence Card holders. If an employer conducts a manual check on these documents on 6 April 2022 or later, they will not benefit from a statutory excuse from civil penalty if it turns out that the individual is working illegally. The right to work of EU Settlement Scheme status holders will also continue to be checkable only via the share code system.

Note that different types of share codes may be generated via different Gov.UK services to support various types of checks, e.g. right to rent checks. An employer will only benefit from a statutory excuse from penalty for illegal working where the share code they use to verify the right to work starts with a ‘W’.

Checking via video link without original documents in hand

For any individuals whose status or documentation does not allow for checking via the share code system, employers must conduct manual right to work checks. A temporary COVID-19 right to work checks policy allows employers to conduct manual checks via video link using scanned copies of right to work documents. The end date for these temporary adjusted checks is 30 September 2022.

The Government has published the draft of the ‘Employer’s guide to right to work checks’ that will apply from 6 April 2022. The guidance states that when conducting a ‘manual’ document check via video link, i.e. checking physical documents, an employer must be in physical possession of the original document. However, the updated ‘Employer right to work checks supporting guidance’ refers to the temporary COVID-19 right to work checks policy which allows employers to conduct manual checks via video link using scanned copies of right to work documents, until 30 September 2022 inclusive.

From 1 October 2022, the employer will need the physical document in hand during a video call, in order for the check to establish a statutory excuse from penalty. For example, an individual can post their British passport to the employer and, once the employer is in physical possession of the British passport, they can conduct the right to work check via live video link with the individual.

Using Identity Service Providers

The draft ‘Employer’s guide to right to work checks’ introduces checks via Identity Service Providers (IDSPs) who use Identification Document Validation Technology (IDVT) to verify individuals’ identity and right to work. IDTVs are devices that scan a right to work document, use software to compare the image checked against templates and provide a score to indicate whether a document is authentic.

From 6 April 2022, employers can engage IDSPs to check the identity and right to work of individuals holding current British and Irish passports and Irish passport cards. This will allow employers to conduct right to work checks on holders of these documents, without having to be in possession of the physical documents. From 6 April 2022, employers engaging IDSPs to check the identity and right to work of individuals holding current British and Irish passports and Irish passport cards in line with Home Office guidance benefit from a statutory excuse.

When conducting a check IDSPs must record details of an individual’s identity, an image of their document and a photograph or image of the individual; the IDSP confirms verification of the individual’s identity and records the date of the check; the IDSP then provides a record of all these elements of the check to the employer.

Employers must still carry out their own due diligence, when relying on IDSPs’ checks, in order to benefit from a statutory excuse. Employers are encouraged to use only certified IDSPs. Employers must be satisfied that the IDSP conducted a check in the prescribed manner. They must satisfy themselves that the photograph and identity details such as date of birth are consistent with the individual presenting themselves for work. Where it is reasonably apparent that the prospective employee is not the individual linked to the check conducted by an IDSP, the employer will not benefit from a statutory excuse from civil penalty.

EEA family members’ pre-Brexit documents no longer valid

Family members living in the UK may still hold documentation issued in line with EEA Regulations before the post-Brexit grace period ended on 30 June 2021; this was the deadline to apply for status under the EU Settlement Scheme. Family members might have an endorsement in their passport, a Residence Card or an EEA family permit, which is the old type of family permit; from 6 April 2022, these documents are removed from the lists of acceptable documents when conducting a manual check.

Employers can check the current type of family permit, which is the EU Settlement Scheme family permit, or use the share code system to establish a statutory excuse when checking the right to work of the family member of an EU, EEA or Swiss citizen.

Many EEA and Swiss citizens’ family members are not aware that they were required to apply for status under the EU Settlement Scheme; their documents might show an expiry date in the future or state that they have permanent residence. However, documentation issued under the pre-Brexit regime for EEA nationals and their family members has been invalid since 1 July 2021.

Please get in touch with Spencer West Immigration and Global Mobility Partner Samar Shams if you have concerns about the validity of documents. EEA and Swiss citizens’ family members who have not applied to the EU Settlement Scheme might still be able to regularise their immigration status and evidence right to work. The Home Office accepts late applications to the EU Settlement Scheme in certain circumstances, though the application deadline was 30 June 2021, for family members who were living in the UK by 31 December 2021.

For advice on right to work checks or other immigration and global mobility questions, please contact Immigration and Global Mobility Partner Samar Shams on the contacts details below.