Right to Work Checks- Important changes
The Government has released a new Code of Practice on Preventing Illegal Working. The new code reflects the fact that, as of 28th January 2019, employers can now conduct ‘right to work checks’ online for certain employees.
Employers can still carry out manual checks if they choose to.
Why do Right to Work Checks?
- The UKVI can serve an employer with a notice requiring the payment of a penalty of a specified amount where they employ a person who is subject to immigration control; and
- aged over 16; and
- not allowed to carry out the work in question because either they have not been granted leave to enter or remain in the UK or because their leave to enter or remain in the UK:
- is invalid;
- has ceased to have effect (meaning it no longer applies) whether by reason of curtailment, revocation, cancellation, passage of time or otherwise; or
- is subject to a condition preventing them from accepting the employment.
In the event that an employer is found to be employing an employee who does not have the right to work, then they will have a defence if they have carried out the correct right to work checks. This can mean avoiding a financial penalty of up to £20,000.
In addition, if you are a licenced sponsor, failure to do right to work checks could lead to the loss of your sponsor licence.
What has changed?
Previously, employers had to conduct a manual check of an employee’s right to work documents in a specified form. Going forward, employers will have the option of making an online check to find out of an employee has the right to work. They will have to follow a three step process.
- The employee must give their permission for you to view their Home Office record online. They must do this by using the ‘Prove your right to work to an employer’ page on the .gov.uk website. This will generate a share code.
- The employer can then carry out the online right to work check by using the ‘View a job applicant’s right to work details’ on the .gov.uk website. The employer will need to enter the share code.
- The employer will receive a notice from the Home Office confirming whether the employee has the right to work and any conditions attached. The employer must retain this as evidence of having done.
This option will not be available for all employees because not all employees will be on the Home Office system. At present, an employee must have applied for ‘settled status’ as an EU national, or have a biometric residence permit. This means that you cannot use it for British nationals or those whose immigration status is proved by a vignette or sticker in their passport. For those employees, an employer must still carry out a manual check.
An improvement, but care still needed
This system should be more straightforward for employers to use for those employees who are eligible. However, there are some points that employers should still bear in mind.
This system is different from the existing online ‘Employer Checking Service’ checks. These are only for use where an applicant or employee has submitted an application for a visa to the Home Office before their old leave expired and the Home Office are still considering it. If the employee has the right to work, then the employer will receive a Positive Verification notice which will give them a statutory excuse for 6 months only. Employers must ensure that they are using the correct scheme.
Employers must make sure that they are using the gov.uk website. The Home Office clearly anticipate that there may be imposter websites that imitate the government website. Results from these will not give you a statutory excuse.
Employers must carry out their own online check using the share code. They must not rely on an online result provided by the employee themselves.
Employers must still check that the person that they are employing is the person for whom they get a notice, for example by looking at the photograph. You will not have a statutory excuse if the person you employ is clearly an imposter.
Some employees will require additional documents. For example, Tier 4 students can work only limited hours in term time. The employer must obtain evidence of their term dates from the university before employing the individual. These must be retained and refreshed over time. If you have any questions or concerns regarding right to work checks, or any other aspect of employing migrant workers, please contact Paragon Law for further advice and assistance.