The Home Office have introduced significant changes to the Rules in relation to Right to Work Checks for all checks carried out on or after 6 April 2022 and there will be further changes being introduced on 1 October 2022.
Employers must be carrying out Compliance Right to Work checks on all employees before they start work in order to have a statutory defence against the imposition of a civil penalty if it later transpires that the employee in question did not have the right to work in the United Kingdom (UK). The consequences of getting it wrong can be extremely serious and the Home Office have the power to issue a civil penalty of up to £20,000.00 per employee and if employers knowingly employ someone who they know or should reasonably have known did not have the right to work in the UK, then they can also face criminal liability.
The position for certain non-British and non-Irish national from 6 April 2022
For employees who hold any of the following, the employer may only use the online right to work check from 6 April 2022:-
- Biometric residence permit
- Biometric residence card
- Frontier worker permit
Employees holding Pre-settled or Settled Status under EU Settlement Scheme (EUSS)
Employers must also use the online right to work checking service for employees holding either Settled or Pre-settled Status and they are not permitted to carry out a manual check only or simply view and retain copies of the Home Office approval documentation. It is however important to bear in mind that employers do not need to carry out retrospective checks for employees who started work prior to 1 July 2021.
The position of other non-British and non-Irish nationals
Employers will still need to continue undertaking manual Right to Work Checks for all other non-British and non-Irish nationals and the Home Office have confirmed that Covid adjusted checks will continue to be permitted until the end of September 2022.
The position of British and Irish nationals with valid passports from 6 April 2022
There is now a new type of digital Right to Work Check for British and Irish nationals who hold valid passports from 6 April 2022. For such nationals, employers can choose to use an ID Service Provider (IDSP) in order to carry out remote digital checks if the individual is a British or Irish national with a valid passport or a valid Irish passport card.
It is very important that employers are aware that they are not fully outsourcing the Right to Work Checks to the ID Service Provider as ultimately, the employer continues to remain responsible for ensuring the IDSP is carrying out the check correctly and for providing the necessary training and guidance to staff.
As an alternative to undertaking the digital Right to Work Check, employers can continue to undertake manual checks for British and Irish nationals and again, the Home Office have confirmed that the Covid adjusted Right to Work Checks remain in place until the end of September 2022.
Crucially, employers must ensure that checks are undertaken before the employee starts work and they must also ensure that follow-up checks are undertaken before the employees leave (permission) expires, if they have time limited leave in the UK. Employers will need to continue to retain evidence of the Right to Work check which they have undertaken, and this must be retained for the duration of the employees employment and for two years after their employment has ended. This requirement will trump any data protection rules or policies which may be in place regarding the retention and destruction of employee documentation.