KR HR & TRAINING NEWS ARTICLES

During the pandemic, temporary measures for conducting virtual right to work checks were introduced.

These have been removed with effect from 1st October 2022. This article provides an update on what practical steps employers need to take now to comply with the latest legislation, as well as a reminder about some of the other recent changes such as digital checks and arrangements for employing Ukrainian nationals.

We’ll start with a simple recap of the basics around right to work checks. Under immigration legislation, employers must take steps to prevent illegal working by:

• Carrying out right to work checks on all employees before their employment starts – ensure all line managers involved in recruitment interviewing understand their responsibilities;
• Conducting follow up checks on employees who have a time-limited permission to live and work in the UK;
• Keeping adequate records of all checks carried out (such as a photocopy of the original document, signed and dated with the words “original seen, true likeliness”; and
• Not employ anyone that it knows, or has reasonable cause to believe, does not have a right to work in the UK.

Failure to properly combat illegal working means that employers may be liable for a civil penalty or even a criminal offence. The civil penalty element arises when an employer employs someone without the right to undertake the work for which they were employed. The criminal offence element is reserved for matters where the employer knew or had “reasonable cause to believe” that the employee did not have the correct immigration status.

There is a statutory defense against the civil penalty if right to work checks have been carried out correctly. Given the potential liability is £20,000 per illegal worker, it is important for employers to do the checks properly and consistently.

The right to work check process has changed a number of times to reflect the different documents the Home Office deem to be acceptable, to address the end of free movement for EU citizens following Brexit and to reflect a partial move to digital checking. There were also temporary changes to assist with remote working during the pandemic, which have just come to an end.

Right to work checks must be done consistently for every employee, with evidence of the check retained securely on their HR record. To only focus on certain individuals based on perceived nationality or status would be discriminatory.

Currently there are 3 different ways of carrying out a right to work check depending on the employee’s immigration status and the documentation they are relying on

1. Manual checks
2. Checks through a third party a Digital Identity Service Provider (DISP)
3. Online digital checks

Until 30 September employers could rely on the adjusted Covid process to checks documents virtually. From 1 October the original document will need to be seen unless a DISP is used to carry out a digital check. Note that there is no requirement to repeat a virtual check that was completed under the adjusted Covid process (unless it was a time-limited document). 

MANUAL CHECKS

The process requires you to see the documents, check they are valid and genuine and allow for the type of work involved and then keep a signed and dated copy.

Documents suitable for manual checks are listed in List A (those which provide a permanent right to work) and List B (those which provide a temporary right to work) on the Home Office website. 

DIGITAL IDENTITY SERVICE PROVIDERS

This option is only for checking British and Irish citizens with valid passports (or Irish passport cards).

ONLINE DIGITAL CHECKS

Since 6 April 2022 digital checks rather than manual checks must be carried out for individuals with biometric resident cards or permits as well as those with frontier permits, and EU citizens who have settled status.

Individuals need to log into the right to work system and obtain a share code which they pass to the employer. The employer then uses the code plus the individual’s date of birth to log in and check the right to work. They must keep a record of the check.

ARE THERE ANY SPECIAL RULES AROUND EMPLOYING UKRAINIAN NATIONALS?

As a result of Russia’s most recent invasion of Ukraine in February 2022 and the continuing war, the UK government introduced a new visa system for Ukrainian nationals. Under the scheme individuals can work and access benefits in the UK for up to 3 years.

Individuals who have a Ukrainian passport are given a permission to travel letter followed by a passport stamp which is then valid for 6 months. During those 6 months the individual needs to obtain a biometric residence permit (BRP).

If employing a Ukrainian national, the passport and entry stamp should be checked manually prior to employment starting. A follow up check should then be carried out using the online service before the temporary 6 month right expires.

Understandably, people fleeing a war zone may not always have the opportunity to gather documents prior to leaving. Individuals without a Ukrainian passport need to provide biometric information and collect their BRP shortly after arrival in the UK. If necessary, they can show their entry clearance stamp which will be attached to a form for affixing the visa (FAV) and this can be verified by the employer using the employer checking service. However, individuals are expected to collect their BRPs urgently.

HOW CAN BUSINESSES MAKE THE RECRUITMENT AND VISA PROCESS EASIER FOR NON-UK APPLICANTS?

There are a number of steps businesses can take to make life easier for both the employer and applicants from abroad:

• The first step would be to consider whether a sponsor license would be useful. Having a license at the outset (if one is needed and can be justified) can make subsequent recruitment processes easier and quicker if you want to offer a job to someone who requires sponsorship to gain permission to work in UK.
• Ensure systems and processes are suitable and right to work checks are done correctly 
• Consider financial and practical support for applicants, such as contributing towards relocation costs (potentially with a claw back provision if people leave within a specified time period) 

For further questions about any of the above, please get in touch.