All employers in the UK are obliged to verify that a prospective employee has the right to work in the UK – and carry out the role in question – before the employee commences employment with them.
Employers must carry out these checks, and do so correctly, in line with current Home Office guidance, to establish the statutory defence. The defence will help them avoid a penalty should they subsequently be found to be employing illegal workers.
Such penalties are significant – a potential fine of £20,000 per illegal worker or, in the case of criminal liability (for employing an illegal worker when an employer ‘knows’, or has ‘reasonable cause to believe’, they are here illegally) an unlimited fine and up to five years in prison.
As part of the Home Office’s attempts to modernise the immigration system, it has launched an online Right to Work Checking portal via the gov.uk website.
Currently, it can only be used to check certain individuals’ right to work – namely non-EEA nationals holding biometric residence permits or cards, or EEA nationals who have been granted settled status under the EU Settlement Scheme. For anyone else, employers will need to continue with the ‘old school’ paper checks. Smaller employers might elect to continue doing all checks in the familiar way while the new system beds in. For larger employers (particularly of individuals who meet the criteria for the online scheme) it may be advantageous to get used to the new system now.
How does the new portal work?
Eligible individuals are able to check their right to work status on the government’s online portal. Once they have done so, they can generate a ‘share code’ which they can then share with their employer. The code only remains valid for 30 days, after which time it will lapse and a new code will be required.
The employer can then use the prospective employee’s share code (in conjunction with their date of birth) on the ‘employer’ part of the portal to view right to work status. Importantly, employers cannot rely on viewing the details provided to the prospective employee on the ‘migrant’ part of the service as this will not provide them with a statutory excuse; they must access the check using the employer pages of the website.
The second stage of the new checking process is that the employer must verify that the person presenting the online right to work check is not an imposter – ie that they are the same person as the person appearing in the photo on the online check. Assuming they are, the employer will have established the statutory defence.
Finally, the employer needs to make sure they have kept evidence of the right to work checks. For the new online check, this will be the ‘profile’ page confirming the individual’s right to work – it will include the individual’s photo and the date the check was carried out.
The employer will need to either print this out or save it in an uneditable format, for example a pdf. It would be prudent for the employer to also ‘evidence’ that it has verified the profile picture is that of the prospective employee (including the name and signature of the person that carried out this verification, and the date).
Employers need to store the profile page (and verification evidence) securely, whether electronically or in hard copy, for the duration of the individual’s employment and for at least two years afterwards. Employers should inform their employees that they will be keeping their data (and for what purposes) to ensure compliance with any data protection requirements.
While this seems straightforward enough, it will be interesting to see how the system copes with potential challenges or attacks, as it becomes widely available.
In the meantime, paper-based checks remain valid, but it seems only a matter of time before a fully online right to work check replaces them entirely.
Laura Darnley is an employment associate at HRC Law