A right to work check is essential for an employer to establish a statutory defence against the imposition of a civil penalty for employing an illegal worker (which can be up to £20,000 per illegal worker). The check must be undertaken on all potential employees regardless of nationality or ethnic origin before the employee starts work.

Temporary right to work check

Temporary adjusted right to work check measures have been in place since 30 March 2020 due to COVID-19. This has allowed potential employees to send scanned documents (rather than originals) to an employer by email or a mobile app. The employer has then been allowed to conduct a right to work check by checking the original documents via a video call.

However, these adjusted right to work check measures are only temporary and will now come to an end on 30 September 2022.

Until 30 September 2022:

• manual checks can be carried out over video calls;
•  job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals;
• employers can then arrange a video call, ask the worker to hold up the original documents to the camera and check them against the digital copy of the documents. Employers should record the date they made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”; and
• employers should use the Home Office Employer Checking Service if a prospective or existing employee cannot provide any of the accepted right to work check documents.

What right to work checks must employers do?

In summary, employers will now have three options in relation to right to work checks:

1. From 6 April 2022, foreign nationals who have a biometric work or residence permit can only be checked online. They must provide their date of birth and share code to the employer. Face-to-face manual right to work checks will no longer be enough to establish a statutory defence in relation to these individuals.
2. Employers will be able to use certified Identity Service Providers (IDSPs) to complete digital right to work checks for British and Irish citizens (as long as they hold a valid passport). This will be an alternative to manual checks and the IDSPs will complete these digital right to work checks on behalf of employers for a fee. The digital check will involve submitting images of personal documents rather than the original documents but using Identity Document Validation Technology instead of a scan or copy. The decision to defer the deadline for the end of adjusted right to work check measures to 30 September 2022 is intended to allow employers sufficient time to develop commercial relationships with IDSPs and make the necessary changes to their pre-employment checking processes.
3. From 1 October 2022, employers will no longer be able to carry out adjusted right to work checks. If they wish to carry out a manual check of right to work documents, this will need to be done in person.

When the temporary COVID-19 measures were implemented, the Home Office said that follow-up checks on any employees who had had a COVID-19 adjusted right to work check would need to be carried out within eight weeks of the temporary measures ending. However, the Home Office has now confirmed that these retrospective checks will not be required. Employers will maintain a statutory defence against a civil penalty as long as they did a normal check or a COVID-19 adjusted check at the relevant time.

If you have any queries in relation to right to work checks then please contact a member of the Employment or Immigration team.