The way employers carry out right to work checks are set to change from 6 April

The Home Office has announced changes to how employers undertake right-to-work checks for employees and prospective employees, with effect from 6 April 2022.

Currently, non-UK/Irish nationals who hold either biometric residence cards (BRC), biometric residence permits (BRP), or frontier worker permits (FWP) can demonstrate their right to work in the UK by either showing their physical cards or through the Home Office's online service. From 6 April, they will only be able to do this through the online service and employers will no longer be able to accept physical cards or do a manual right to work check. This is a huge change for employers, who should be ensuring that right to work checks for overseas workers are conducted solely using the online checking service from next month.

Checks for British and Irish citizens

At the moment, the online service is not available to British and Irish citizens, but this is due to change in April with the introduction of new identity document validation technology (IDVT). Employers will do this using Identity Service Providers (IDSPs) who will carry out the right-to-work checks on behalf of the employer. They will also be able to check whether there is a history of the claimed identity and whether the claimed identity is at high risk of identity fraud.

While enabling legislation for IDVT is likely to be in effect from 6 April, it is not yet clear whether IDVT will be readily available from or after this date or whether there might be further delays while finer details are ironed out. There will also likely be a cost for those IDSPs to provide IDVT services to employers. It is important to note that it will still be the employer's responsibility to ensure that right-to-work checks are undertaken correctly, and IDSPs will have no liability. However, if checks are undertaken correctly and in line with guidance, employers will have a statutory excuse against negligently employing illegal workers.

Are the Covid-19 right-to-work checks changing on 6 April 2022?

The current and temporary COVID-19 adjusted right to work checks, which enables employers to conduct right to work checks over video calls, and to accept scanned copies of documents rather than original copies, was due to end on 5 April 2022. This has now been delayed further to 30 September 2022.

For those who undertook COVID-19 adjusted checks, retrospective checks are not required. Employers would maintain a defence against a civil penalty if the checks were done in the prescribed manner set out in the COVID-19 adjusted checks guidance.

Consequences of non-compliance

There could be severe sanctions if right-to-work checks are not done correctly and illegal workers are employed in your organisation. These sanctions can apply to the organisation as a whole and individuals involved in the recruitment of illegal workers (whether this is done knowingly or just through negligence). Under the UK's criminal regime, knowingly employing illegal workers can result in criminal liability and sanctions, including imprisonment and an unlimited fine. Where illegal workers are negligently employed, the employing organisation can be liable for a fine of up to £20,000 per illegal worker.

All right to work checks should be completed before an employee starts work with you (a period of induction will be too late), and where an employee's right to work is time-limited, a follow-up check must be conducted before the right to work is due to come to an end.

By undertaking right-to-work checks in line with prescribed guidance and before a prospective employee starts work with you, you ensure your organisation has a statutory excuse against employing an illegal worker negligently.

Employers should be amending policies and procedures to take account of the new changes. We can help you understand your obligations and ensure the new practices are embedded into your organisation.

Understanding your options

The majority of skilled migrant workers expect that their employer will sponsor them to enable them to live and work in the UK. We can advise on all aspects of the sponsor licence application and support you through this process.

Sponsor licences place onerous obligations and requirements upon sponsors. We can support you before you apply to become a licensed sponsor or agree to sponsor a skilled worker (where you already have a sponsor licence). With our help can you understand whether any alternative options exist to enable you to employ your prospective employee without sponsorship.

In addition to existing routes such as ancestral rights, graduate visa route, youth mobility and global talent routes, new routes are being introduced this Spring. Watch this space for more detail on the new high potential individual, scale-up and global mobility visa routes.

For more information and help in this area, please contact Amy Sergison on 0191 211 7995, [email protected] today.