Right to work checks

All employers in the UK have a responsibility to prevent illegal working. They do this by conducting simple right to work checks before they employ someone, to make sure the individual is not disqualified from carrying out the work in question by reason of their immigration status. The government has updated its guidance in which it advises an employer how to conduct a right to work check and sets out the specific actions they can take to prevent liability for a civil penalty. This is called 'establishing a statutory excuse against liability for a penalty'.

The guidance applies to right to work checks conducted on or after 26 January 2023 to establish or retain a statutory excuse from having to pay a civil penalty for employing a person who is not permitted to do the work in question.

Employers should check which version of the guidance as in force at the time the relevant employment started. The most significant updates contained in the latest guidance relate to:

• clarification for employers on the use of Identity Document Validation Technology (IDVT) and Identity Service Providers (IDSPs) to support manual document-based and Home Office online checking service right to work checks.
• the use of “Reusable Identities” for checks involving the use of IDSPs.
• end of the COVID-19 temporary adjusted checks on 30 September 2022.
• changes to enable some individuals with an outstanding, in-time application for permission to stay in the UK, or an appeal, or administrative review to prove their right to work using the Home Office online checking service
• confirmation that Re-Admission to the UK (RUK) endorsements are an acceptable document for the purposes of right to work checks.
• information on sponsored work and student categories.
• information on short-dated Biometric Residence Permits.

Compliance with the right to work checks is important for employers who may wish to consider taking specialist advice. An employer who is found to be employing someone illegally which has not carried out the prescribed checks may face sanctions including:

• a civil penalty of up to £20,000 per illegal worker
• in serious cases, a criminal conviction carrying a prison sentence of up to five years and an unlimited fine
• closure of the business and a compliance order issued by the court
• disqualification as a director
• seizure of earnings made as a result of illegal working.

To discuss this or any other employment matter, contact us.