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Right to Work Checks Guide

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The rules on right to work checks are changing. That’s because the government  introduced temporary concessions to right to work checks because of COVID-19 and they end on the 16 May 2021. Specialist immigration and employment law solicitors know that start-ups, SMEs and HR departments don’t have the time to read the detailed legislation on right to work checks when they are dealing with so many COVID-19 related return to work and health and safety issues. This right to work check guide highlights the key points.

UK Immigration and Employment Law Solicitors

For specialist immigration and employment law advice on right to work checks or making a sponsor licence application or hiring skilled migrant workers call OTS Solicitors on 0203 959 9123or contact us online.

 Which UK businesses are affected by right to work checks?

All UK employers have to comply with the prevention of illegal working legislation. The definition of UK employers includes sole traders, partnerships and companies. There is no rule on the minimum number of employees that a business has to employ to be liable for breaching the prevention of illegal working legislation.

Which employees are affected by right to work checks?

All UK employees are affected by right to work checks. The legislation doesn’t distinguish between workers who were born in the UK, workers who have secured indefinite leave to remain and are settled in the UK and EU nationals who have pre-settled status or settled status under the EU Settlement Scheme or EU or non-EEA nationals who are living in the UK on skilled worker visas or intra company transfer visas or other type of work visa.

What is a right to work check?

A right to work check is a legal obligation placed on a UK employer to comply with prevention of illegal working legislation. The law requires the employer to carry out a check of the prospective employees right to work in the UK through examination of the potential employee’s paperwork.

Does a right to work check have to be carried out more than once?

A right to work check may have to be carried out on an employee more than once. If an employee has an indefinite right to work in the UK , for example because they are a British citizen or have indefinite leave to remain, then the right to work check can be carried out once.

If an employee has limited leave to remain in the UK, for example because they are on a time limited work visa such as a skilled worker visa, then the right to work check will need to be carried out more than once if the employer continues to employ the skilled migrant worker after the expiry of their initial skilled worker visa. The employer will need to record a new right to work check and see the new right to work paperwork, such as the skilled worker visa extension.

Singling out employees for repeat right to work checks isn’t discriminatory provided that the repeat right to work checks are based on the individual’s immigration status as opposed to their ethnicity or race. Therefore, an employer should not have a policy of conducting annual right to work checks on all Polish employees unless all their Polish employees have limited leave to remain in the UK and the individual employees limited leave to remain is due to expire at around the time of the right to work check.

Failure to carry out necessary repeat right to work checks carries the same penalties as not complying with an initial right to work check. It is therefore best that those dealing with HR issues have an effective diary management system in place or use a sponsor licence management service.

Right to work and the end of the COVID-19 concessions

The temporary measures allowing for right to work checks to be carried out remotely ends on the 16 May 2021. Any right to work checks conducted during the concessionary period should state “adjusted check undertaken on [date] due to COVID-19” to make it clear that the right to work check complied with measures in force at the time the right to work check was carried out.

From the 17 May 2021, the old rules on the conduct of right to work checks apply. For employers, the main issue is that the use of scanned or digital paperwork is no longer acceptable and reliance on this type of document from the 17 May 2021 onwards means that the right to work check won't have been completed correctly. That, in turn, means the business will be in breach of the prevention of illegal working legislation. If an employer can't see the employee’s original documents there is always the option of using the Home Office’s online checking service.

The Home Office has confirmed that there is no need for employers to carry out retrospective right to work checks on employees who had a right to work check conducted under the temporary COVID-19 measures. However, a further right to work check may be necessary if the worker only has temporary leave to remain in the UK.

Brexit and right to work checks for EU nationals

Until the 30 June 2021, EU, EEA and Swiss national workers can continue to use their valid passport or national identity card to prove their right to work in the UK. From the 1 July 2021, EU , EEA and Swiss workers will need to provide evidence of their pre-settled status or settled status under the EU Settlement Scheme or other form of settled status or evidence of a valid work visa under the points-based immigration system. An EU employee with pre-settled status or in the UK on a work visa, such as a skilled worker visa, will only have a time limited right to work in the UK and therefore a further right to work check will need to be diarised.

Why is it important to carry out right to work checks correctly?

An immigration or employment solicitor will tell any employer that it is essential that right to work checks are conducted in accordance with the law because if the checks are carried out correctly it provides an employer with a statutory defence against breaches of prevention of illegal working legislation. The defence is only obtained if the right to work check is conducted properly.

How to conduct a right to work check

There are four key stages to the right to work check process:

  • Obtain the right paperwork from the prospective employee.
  • Check that the paperwork provided by the prospective employee meets Home Office rules.
  • Copy the paperwork and place a copy on the employee’s HR file so there is evidence that the right to work check was conducted when it should have been.
  • Diarise up if the worker only has limited leave to remain so that the business completes a new right to work check before the expiry of the worker’s pre-settled status or work visa.

What documents  does an employee need for a right to work check?

Home Office rules list the documents needed to complete a right to work check. The documents  needed depend on whether the prospective employee is a British citizen or not. One option is to use the Employer Checking Service provided by the Home Office if the prospective employee agrees to the use of this online tool. If use of the Home Office Employer Checking Service isn’t possible then the right to work check has to be conducted through having sight of the relevant documents and photocopying and retaining the copies on the HR file.

If the person conducting the right to work check is in any doubt about the genuineness of the documents, then they should refer their concerns to a more senior member of staff given the implications to the business of not correctly carrying out right to work checks. The Home Office won't normally take any action unless it should have been reasonably apparent that the documents were not genuine or were not documents belonging to the prospective employee and therefore can't be used for identity or right to work check purposes.

How long do right to work documents need to be kept for?

The rules say that photocopy documents must be dated on the day of the right to work check and the document must be clear and legible. The document can be kept as a hard copy or digitally provided that the document can't be altered. A pdf is therefore acceptable. The full document needs to be photocopied save for passports (where you can copy the page with the expiry date and the prospective employee’s details and any permits).

The rules provide that the business must keep the paperwork for the duration of the employee’s employment with the company , plus a further two years after their employment is terminated.

What happens if a business doesn’t comply with right to work checks?

There are various potential penalties for breaching prevention from illegal working legislation, including:

  • Criminal prosecution.
  • Civil penalty for illegal working amounting to a fine of up to £20,000 for each breach of the law.
  • Home Office sponsor licence suspension.
  • Home Office sponsor licence revocation.
  • Disqualification of company directors.
  • Reputational damage.

All of the above penalties cost the business time and money and that’s why it is best to fully comply with the right to work check requirements or if in any doubt about the rules check with your immigration and employment law solicitor.

UK Immigration and Employment Law Solicitors

For specialist immigration and employment law advice on right to work checks or making a sponsor licence application or hiring skilled migrant workers call OTS Solicitors on 0203 959 9123or contact us online.

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