Digital Right to Work Checks are here to stay
In response to the Covid-19 pandemic, the Home Office introduced digital right to work checks. Designed to remove the need for employers to meet with their prospective new staff members face to face, these digital checks allowed for a much speedier on-boarding process during periods of staff shortages and remote working arrangements.
Digital right to work checks were intended to be a temporary measure, but a permanent system of digital right to work checks will now be in place from 6 April 2022.
Will there be a cost to employers to carry out digital right to work checks?
Full details are to follow, but it’s likely the new digital checking service will attract an employer charge. This could vary from £1.45 to £70 per check, but according to the Home Office’s review on the service, it will probably only apply to right to work checks on UK nationals, with a free online checking service available for overseas workers.
A business that fails in its obligation to prevent illegal working can face civil and criminal proceedings, regardless of if they conducted digital or standard paper-based right to work checks. This could include fines of up to £20,000 and, in the most severe cases, imprisonment.
Earlier this year, a new draft Code of Practice on the prevention of illegal working for employers was published, along with updated guidance on the prevention of illegal working. These documents are well worth a read for any employer and will continue to apply after 6 April 2022 for any checks that an employer conducts.
Is there a short cut for conducting right to work checks?
Right to work checks are an absolute requirement by an employer, and there are no short cuts.
The right to work provisions are set out in legislation and the Code sets out employers’ duties in three key steps referred to as: OBTAIN, CHECK and RETAIN. The process must be completed prior to employment starting, and HR teams should ensure that the immigration principles are embedded into their recruitment and onboarding systems. Employers need to obtain original copies of the documents that are deemed acceptable by the with Code of Practice.
The Code includes two lists of accepted documents: List A and List B. Broadly speaking, List A is for individuals with settlement rights and List B is when entry to the UK is subject to some time constraints. This documentation must be checked in the presence of the applicant, and a reasonable test of authenticity should be carried out.
The Home Office does not expect employers to be fraud experts, but they do expect employers to follow up any concerns which they may have about the authenticity of documentation. Once checked, the document should then be signed, dated and certified as being a true likeness of the applicant. The employer should then keep the documentation on file for the duration of employment and for two years thereafter.
Do right to work checks apply to all employees?
Employers must not discriminate when conducting right to work checks; they should be conducted on all potential employees, including British citizens. Employers should also ensure that HR teams – and managers with responsibility for recruitment – are aware that all potential staff members are subject to these checks.
For digital/ remote / online right to work checks, employers should:
- ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app
- arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents, record the date the check is made and, until 5 April 2022, mark it as ‘adjusted check undertaken on [insert date] due to COVID-19’.
If the person has a current Biometric Residence Permit or Biometric Residence Card, or has been granted status under the EU Settlement Scheme or the points-based immigration system, employers can use the online right to work checking service while doing a video call – although the applicant must give you permission for their details to be viewed.
Author: Charlotte Geesin, Legal Director at Howarths
