Right to work checks in the UK are a legal requirement to prevent illegal working. The requirement to carry out the checks as we know them today came into force in 2008, along with the civil penalty scheme to deter employers from hiring illegal workers. The civil penalty can be up to £20,000 for each illegal worker and, in serious cases, it can carry five years' imprisonment for those involved.
Right to work checks must be carried out on each worker – even British citizens – on or before their work start date and every time a new visa is obtained. Usually, if the employer is able to see and verify the worker's original passport, or passport and proof of their immigration status, it is sufficient to provide the employer with a statutory excuse and they should therefore not be liable for any civil penalty. In 2019, the Home Office also introduced online checks for migrants who hold certain types of visa documentation, and the Employer Checking Service can assist where a migrant is temporarily unable to show their documents.
Businesses often have queries as to the ins and outs of the right to work check concerning migrant workers, particularly when there are delays or new changes are announced. We regularly see the following three questions crop up:
The migrant's start date is today but they have forgotten their original documents. Is it OK to allow them to start today and remind them to bring the documents tomorrow?
No. The Home Office guidance is clear that the right to work checks must be done on or before the migrant's first day, and carried out before any work is done. If the migrant does not have their original documents, they should be sent home and return only when they have their documents with them. Alternatively, the migrant may be able to share a link with the employer, which can verify their right to work online.
Can a migrant work with their 30-day entry clearance vignette before collecting their biometric residence permit (BRP)?
Yes. A migrant can show their employer their original passport containing the 30-day vignette as proof of their eligibility to work. However, once the BRP is collected, and before the expiry date of the vignette, a new check must be carried out on the updated documentation to continue an employer's statutory excuse.
Has the process changed for EU nationals in light of Brexit?
No. At least not yet. EU nationals can continue providing their original passport or national ID card up until 30 June 2021 as valid proof of their right to work in the UK. An EU national may apply under the EU Settlement Scheme, provided they arrive in the UK on or before 31 December 2020. They can share an online link with their employer to evidence their status. However, employers cannot request to see this settlement status until after 30 June 2021. It is likely that businesses will have to complete a similar online check for EU nationals, who will require a visa, entering the UK from 1 January 2021. The good news for employers is that retrospective checks will not need to be carried out on existing workers.
Right to work checks v Covid-19 measures
As set out above, right to work checks usually involve the employer verifying the identity and documentation of the worker in person. However, because of Covid-19, it is not possible to carry out the checks in the usual way. The Home Office has therefore advised that the checks can be completed virtually, with the migrant sending the employer a copy of their documents and these then being verified against the originals via a video conversation – this has been named an ‘adjusted check’. Once social distancing and lockdown measures are lifted, employers must carry out retrospective checks in the usual way and keep documents on file with the adjusted check.
Given the potentially serious implications of failing to carry out right to work checks properly, or at all, employers should contact their immigration advisers to ensure compliance with the legal requirements.
Marianne Hessey is an associate at Dentons
This article reflects the position as at 20 April 2020