UK Visas and Immigration (UKVI), and the overarching body, the Home Office, require employers in the United Kingdom to make Right to Work (RtW) checks.
What is the Right to Work legal framework?
Sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006, section 24B of the Immigration Act 1971, and Schedule 6 of the Immigration Act 2016, set out the statutory provisions preventing undocumented working.
What is the current position?
UK organisations and businesses intending to employ new hires, must carry one of three prescribed checks before the new hire may start their employment role. The checks are aimed at preventing undocumented individuals from taking up employment. The checks are:
• A manual right to work check.
• A right to work check using online digital identity checks (known as IDVT), via an identity service provider (IDSP).
• A UKVI online right to work check.
If one of the above checks is made, the sponsoring employer will have a defence against a civil penalty, or statutory excuse. It is recommended that a record of the relevant check is made and kept on file.
How does the UKVI online check work?
UKVI will give the prospective employer up-to-date information about a new hire’s immigration status.
Prospective employers need not request and check the person’s documents, though a copy of the individual’s passport may prove helpful to acquire information needed for the UKVI online check.
Rather than obtain the documents for the file, the new hire will give permission to the employer to view their online immigration status in real time. This is done by the new hire providing access, by way of a UKVI share code, to the employer. The employer will enter the share code and the new hire’s date of birth into the UKVI site. The share code will be valid for 90 days from the point it has been issued and can be used as many times as needed within that period.
It is recommended that a record of the data provided by UKVI through the share code is kept on file. This may provide the employer with a statutory excuse, should one become necessary.
It is worth noting that the share code can only be requested from the new hire. Individuals cannot be forced to provide a share code to prospective employers.
How does the IDVT process work?
Employers may use the service of IDSPs to verify the new hire’s status. This includes all new hires such as British and Irish citizens.
Where a check is required by the Disclosure and Barring Service (DBS) is required by the employer, an IDSP verification check must be made. This will provide information about an individual’s criminal record, a possible advantage of the IDSP system.
Where the IDSP verification is used, the prospective employer will not need to request and check the individual’s documents. However, acquiring a copy of the individual’s passport may assist the IDSP with their checks.
Is the employer required to first use the IDVT?
Prospective employers may use one of the three prescribed methods to verify an individual’s RtW status. UKVI recommend that employers use the services of a certified IDSP. If used, it is strongly recommended that a record of the information provided is kept on file.
Where can I find further information about the IDVT?
Additional information and guidance about the IDVT and IDSPs and a list of certified IDSPs can be found on UKVI’s website.
It must be highlighted that use of the IDSP is highly recommended by UKVI. However, should the IDSP make an error, it is unclear as to the strength of the employer’s statutory excuse in such instances. There is a possibility that the employer will be liable for the error, and this should be discussed with the IDSP. Therefore, making a brief document check to support the IDSP verification may assist.
Can employers continue to manually check the physical documents of a new hire?
Prospective employers may continue to obtain the new hire’s identity documents, check, and retain copies of the documents on file, as per the initial UKVI instructions. The IDVT and UKVI online checks are there to ease the RtW checks made by employers.
That said, as of 6 April 2022, individuals that in possession of a Biometric Residence Card (BRC), Biometric Residence Permit (BRP), or Frontier Worker Permit (FWP) are required to evidence their right to work using the UKVI online service only.
Therefore, employers cannot accept the above physical cards to meet their RtW obligations, even if there is time left to run on the BRC, BRP, or FWP. For that reason, such cards have been removed from the lists of acceptable documents used to conduct a manual right to work check.
Manual checks cannot be solely relied upon where a DBS check is necessary. If so, an IDVT check must be made.
Employers can face a civil penalty if they do not record the date on which the check was performed. UKVI state that simply dating copies of the documents does not confirm this to be the actual date of the RtW check. Instead, the employers is required by UKVI to specify that the date represents when the RtW check was conducted.
Can UKVI’s online check and IDVT be used for existing employees?
Current employers may use the UKVI online check if the employee has an outstanding application for limited or indefinite leave, administrative review, or appeal, or if their immigration status requires verification by UKVI.
In such circumstances, a positive verification notice from UKVI’s Employer Checking Service (ECS) would provide evidence for the employer’s statutory excuse for six months from the date of the Notice.
Biometric cards have been removed from UKVI’s list of acceptable RtW documents. If the employer had previously referred a BRC, BRP, or FRC to meet the RtW obligations, this may prove acceptable. UKVI state that retrospective checks will not be required on biometric card holders who, before 6 April 2022, used their physical card to demonstrate their right to work. As such, employers will maintain a statutory excuse against a civil penalty if the initial checks were undertaken in line with the guidance that applied at the time the check was made.
Can an employer contact UKVI for help?
Employers may continue to contact UKVI directly for assistance, if needed. UKVI’s contact details are as follows:
Employer Enquiry helpline, 0300 790 6268
The helpline is open Monday to Thursday from 9am to 4:45pm and on Friday from 9am to 4:30pm.
A regulated Immigration Consultancy, such as Thomas Chase Immigration, can give immigration advice to help the business understand their RtW obligations.
Which method is recommended?
Thomas Chase Immigration recommend that one of the three prescribed methods is used to confirm an individual’s right to work in the UK for the specified role. Doing so may give the employer a statutory excuse against the possibility of hiring an undocumented person. The prospective employer and employer must be aware of the current list of acceptable documents for manual checks, or where an IDVT check is mandatory.
Prospective employers and employers must not discriminate when conducting right to work checks. To avoid doing so, UKVI state that organisations and companies should:
- Be consistent in how right to work checks are conducted on all prospective employees, including British citizens.
- Ensure job selections are made on the basis of suitability for the post.
- Ensure that no prospective employees are discouraged or excluded, either directly or indirectly, because of known or perceived protected characteristics.
Prospective employers and employers must not:
- Discriminate when conducting right to work checks.
- Check the immigration status of those who ‘appear’ to be migrants
- Make assumptions about an individual’s right to work statis in the UK or their immigration status on the basis of their colour, nationality, ethnic, or national origins, accent, surname, or the length of time they have been resident in the UK.
If so, the organisation or company may be acting in a discriminatory manner. They could face proceedings under the Equality Act 2010 or the Race Relations (Northern Ireland) Order 1997, as amended.
What penalties can organisations and businesses face from UKVI?
The penalties for hiring an undocumented individual may include:
- Loss of the sponsor licence
- A fine of £20,000 per undocumented individual.
- Five year prison sentence for the Authorizing Officer and unlimited fine, normally seen in excessive cases of carelessness
- Closure of business and a compliance order issued by the court.
- Seizure of earnings made because of unlawful workers.
If you would like specific immigration advice, you can arrange a telephone consultation or seek assistance for your organisation.
We offer professional immigration assistance with applications for a sponsor licence, sponsor license management and work visa applications.
Written by Carla Thomas – Managing Director at Thomas Chase immigration.
Thomas Chase Immigration offer immigration assistance to individuals and families.
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