All UK employers have a duty to prevent illegal working and therefore the law prescribes that right to work checks in the form of identification checking procedures must be conducted before employing staff.
The law on preventing illegal working is set out in sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act), section 24B of the Immigration Act 1971, and Schedule 6 of the Immigration Act 2016. If an employer follows the correct right to work checking procedure, they will have a statutory excuse against liability for a civil penalty, which can be up to the amount of £20,000, if it is later found they have employed someone who is disqualified from carrying out work in the UK, by reason of their immigration status.
Can right to work checks still be carried out via a video call?
In March 2020, the Home Office introduced a scheme which allowed employers to conduct right to work checks remotely via a video call, in light of the Covid 19 pandemic. The scheme had several specific adjusted rules that needed to be followed but in essence it allowed employees to submit digital or scanned copies of their ID documents to their employer electronically, for example via email, and then the employer would check the digital copy of the ID against the check subject who would appear to them on a live video link. This adjusted checking system, however, was only meant to be temporary and accordingly came to an end on 30 September 2022. Employers are now required to carry out one of the 3 following prescribed procedures:
- a manual right to work check (all)
- a right to work check using IDVT via the services of an IDSP (British and Irish only)
- a Home Office online right to work check (non-British or Irish)
Manual right to work checks
This is the most commonly used procedure and can be applied to all persons. Manual checks include the following steps:
- Check the documents are genuine, original and unchanged. They must belong to the person who supplied them
- Check the photos are the same across all documents and that they look like the applicant
- Check that the dates of birth are the same across all documents
- If two documents have different names, the applicant must have supporting documents to explain this – such as a marriage certificate or divorce decree
If the applicant is not a British or Irish citizen, you must also check the following:
- The date for the applicant’s right to work has not expired
- The applicant has permission for the type of work you’re offering (including any limit on the number of hours they can work)
- Check study and vacation times for students
The employer must make sure when obtaining the documents that they are in physical possession of the original documents, they cannot rely upon digital or printed copies. Employers should follow the government guidance on what types of documents are acceptable to check. The employer must then check the photo ID against the check subject which can either be done in their physical presence, or via a live video link, if for example the check subject has posted the employer their ID, ensuring that the employer is still working from the original documents. The employer must then make and keep a digital or printed copy of the ID documents they have checked and keep it on file for both the duration of the employees’ employment and a further 2 years after their employment ends.
When making copies of the documents, follow the below guidelines:
- Make a copy that cannot be changed, for example a photocopy
- Ensure the copy is clear to read
- When making a copy of a passport, include the expiry date and applicant’s details
- Copy any endorsements like a work visa
- You must make a complete copy of all other documents.
- Retains copies for the duration of the employment and for 2 years after they stop working for you
- Note the date the right to work checks was made
Identity Document Validation Technology (IDVT) check
This procedure was introduced in April 2022 and allows employers to use IDVT via an Identity Service Provider (IDSP) to complete the digital identity verification elements of a right to work check. This service is limited to British and Irish citizens who hold a valid passport only. IDSPs can carry out checks of various standards, therefore when selecting an IDSP employers should ensure to consult the government guidance to make sure the IDSP they are using will provide checks to the standard required by the Home Office for the relevant work to be carried out.
Home Office online check
This is the least commonly used option as it is not possible to conduct Home Office online right to work checks in all circumstances, as not all individuals have an immigration status that can be checked online. It is therefore usually reserved for use only if the above two methods are not available. Examples of individuals who can only use this service to prove their right to work are Biometric Residence Card/Permit holders, Frontier Worker Permit holders or those issued with an eVisa. The process has specific steps and an eligibility criterion that must be followed/complied with and requires the employee to generate a share code online which they would need to pass to their employer before the employer could proceed to make the check. There is detailed guidance provided on the government website on the process which employers should consult and follow.
How Moore Barlow can help
This article is intended to give a general overview of an employer’s duty to check potential employees’ right to work in the UK and the options available to them to conduct those right to work checks. If you are an employer and require legal advice on this process, please contact a member of the Moore Barlow employment law team.