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Advice

So why do so many employers get it wrong? Here are our top tips to help you carry out right to work checks correctly.

All employers in the UK have a responsibility to prevent illegal working. You can do this by carrying out simple right to work checks before an individual is employed to ensure that they are not disqualified from carrying out the work in question by reason of their immigration status. A properly completed right to work check will give you a ‘statutory excuse’ against any civil penalty if it transpires that an employee is working illegally.

The most recent Home Office data reveals that there were 86 civil penalties for illegal working issued in the quarter 1 July 2021 to 30 September 2021. A total of 109 illegal workers were discovered by the Home Office and the gross figure for civil penalties in that quarter amounted to £1,275,000. Furthermore, the name of any employer who is fined under the civil penalty scheme is published on the Home Office website.

1. You must undertake right to work checks BEFORE the employee commences employment

Practical suggestion

If a prospective employee says that they will provide the documents later then you must delay their start date until they provide the documents for checking. As soon as the employee commences working you have lost your statutory excuse if it transpires that they are working illegally

2. Remember that Biometric Residence Cards (BRC), Biometric Residence Permits (BRP) and Frontier Worker Permits (FWP) must be checked online

Practical suggestion

From 6 April 2022, you must carry out a check for individuals holding a BRC, BRP or FWP using the Home Office’s online right to work check service. It will no longer be an option to complete a manual right to work check using a physical BRC, BRP or FWP.

You must have the individual’s date of birth and a valid right to work share code that the individual has generated by accessing the online system for individuals.

You do not need to carry out a retrospective check for employees where a manual check was completed on or before 5 April 2022.

3. If you carry out a manual check on a right to work document (e.g. a British passport), ensure that you record the date the right to work check was carried out

Practical suggestion

Often employers will carry out a right to work check but upload the right to work documents and details to the HR system at a later date. The problem with this approach is that the date recorded on the HR system is often the date that the information was uploaded and not the date when the right to work check was actually carried out. Ensure that anyone carrying out a manual right to work check writes the following on the copy documents ‘the date this right to work check was carried out is [insert date]’ to ensure that you capture the correct date.

4. Care should be taken if outsourcing right to work checks to third-party screening providers

Practical suggestion

Many employers outsource pre-employment checks to a third-party screening provider. However, it is not possible to renounce responsibility if a third-party screening provider gets it wrong.

The ultimate responsibility for performing the right to work check remains with you as the employer. Although it may be possible to force the third-party screening provider to pay any civil penalty if there is an indemnity in the contract, this will not protect you from the reputational damage of being ‘named and shamed’ on the Home Office website or any adverse coverage in the press.

5. Consider performing regular audits of the right to work checks carried out by your third-party screening provider to ensure that they are being carried out correctly

Practical suggestion

How can you tell if a document is legitimate? Use common sense. The test is whether a reasonable person would be able to identify that the document was a forgery. You do not have to be an expert.

Pay particular attention to:

  • The quality of the document – Is it in good condition? Is the print crisp and clear?
  • Does any photograph match the person in front of you?
  • Have any dates expired and are the dates consistent across all documents? - Pay particular attention to date of birth and place of birth.
  • Is there any evidence of tampering or wear? - Are the security seals misaligned? Are the photos flush?
  • Is there any unusual font or formatting?

6. Students: it is not sufficient to just check a student’s right to work documents. You also need to obtain and retain the student’s vacation and term times and keep them on file

Practical suggestion

This will inform you when a student can work full time as this is only permitted in vacation periods. You risk receiving a civil penalty if you allow a student to work over their permitted hours during term time.

Be careful during busy periods. It is very easy to ask a willing employee to work overtime during busy periods and forget that a student is only permitted to work 20 hours during term time. Ensure that all managers who can authorise overtime are aware which employees are working on student visas and have restrictions on the number of hours they are permitted to work during term time.

7. Follow up checks: you must carry out follow up checks for any migrant who has limited leave to remain (where there is an expiry date on their permission to work in the UK)

Practical suggestion

Don’t leave carrying out follow-up checks until the date that the employee’s permission expires.

Digitise your systems to ensure that reminders are generated automatically and sent to the employee in the weeks before their permission expires.

The employee reminders should state that their permission will shortly expire and they need to take steps to extend their leave and make an application to the Home Office before their existing permission expires. State that one potential outcome could be their dismissal if they cannot demonstrate that they have taken steps to extend their leave or have made some other application to the Home Office.

8. Use the Employer Checking Service if the employee or potential employee cannot show their documents or online status

Practical suggestion

The main reason why you would need to contact the Employer Checking Service (ECS) is because the employee or prospective employee has made an application to renew their visa permission, but they have not yet received a decision from the Home Office.

You would also need to contact the ECS because they:

  • have an outstanding appeal or review with the Home Office
  • arrived in the UK before 1989 and do not have documents to prove their immigration status or right to work

You must also ask the Home Office to check their status if they have:

  • a digital or non-digital Certificate of Application that says you need to ask the Home Office to check their right to work
  • an Application Registration Card

Indefinite leave to remain must be in a valid passport (i.e. the passport must not have expired)

If an employee or prospective employee provides an expired overseas passport with an Indefinite Leave to Remain (ILR) stamp, then this is not a valid right to work document.

The employee or prospective employee will need to make an application to transfer their ILR to a Biometric Residence Permit. Once they have made their application then you can use the Employer Checking Service (above) to check their status.

9. Indefinite leave to remain must be in a valid passport (i.e. the passport must not have expired)

Practical suggestion

If an employee or prospective employee provides an expired overseas passport with an Indefinite Leave to Remain (ILR) stamp, then this is not a valid right to work document.

The employee or prospective employee will need to make an application to transfer their ILR to a Biometric Residence Permit. Once they have made their application then you can use the Employer Checking Service (above) to check their status.

10. Any name changes or different names appearing on right to work documents should be acknowledged officially and evidenced by supporting documents.

Practical suggestion

You should request official documents to support any name changes or difference in names across right to work documents.

For example:

  • Deed poll
  • Marriage/civil partnership certificate
  • Divorce decree absolute

The supporting documents must also be photocopied and a copy retained.

For further guidance on right to work checks, contact our immigration solicitors.