The Government has recently issued another update to the Employer’s guide to right to work checks, the Guidance document that sets out the steps which employers must take to ensure their right to work checks provide them with a defence to any allegations of illegal working. The new Guidance takes effect for all right to work checks conducted on or after 26 January 2023.
In this blog Laura Darnley, Partner in our Employment team and Business Immigration expert, looks at the key changes, why they matter and the urgent steps which employers need to take to ensure compliance going forwards.
What are the key changes?
With effect from 6 April 2022, employers have been permitted to use IDVT to digitally verify the identity of British and Irish citizens who hold a valid passport (including Irish passport cards). In broad terms, employers can engage an IDSP to undertake a digital identity check, following which the employer must undertake an “imposter check”.
In other words, they have to check that the photo and biographic details (such as the date of birth) from the IDVT check are consistent with the individual presenting for work. This can be done by video call or in person. The employer then retains a clear copy of the IDVT identity output check for the entirety of time that the individual is employed and for two years after employment ends to establish a valid right to work. The employer remains liable for the civil penalty if the check has not been done properly.
The updated Guidance provides some clarification over the role of IDSPs. We are aware that some IDSPs and other pre-employment screening services have been offering to help employers with right to work checks in relation to manual right to work checks (i.e. the standard physical document checks) or with the online right to work check (where a right to work is established using a Home Office generated share code).
Essentially, they have been offering an entirely outsourced right to work checking service for their clients. The Guidance has now clarified that this is not permitted and that these checks must be undertaken by the employer (rather than a third party); importantly, any checks undertaken in this way will not establish a defence to any illegal working.
In light of this clarification, employers need to ensure that they are not relying on IDSPs/other screening services in this way, otherwise, they may find themselves at risk from illegal working penalties.
Where an individual makes a valid application for a visa extension or for new leave before their existing leave expires, the law states that the “status quo” is preserved whilst that decision is being considered by the Home Office. In other words, their existing leave, and any conditions associated with it, is extended whilst their application is pending. This also applies where an individual issues an appeal/applies for administrative review of a decision within the requisite time limits for doing so.
Historically, the only way for an employer to establish that individuals in this situation have a valid right to work has been via the Employer Checking Service. The latest update means that some eVisa holders will now be able to prove they have a right to work where an application is pending via a share code in the normal way. This will provide employers with confirmation that individuals have the right to work for a 6 month period. Employers will need to undertake follow up checks in the normal way to establish a continued right to work when the 6 month period expires.
Although this will have only limited application to start with, as time goes by, more and more individuals will be able to demonstrate their right to work in this way.
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The new Guidance contains some technical changes to the documents that can be accepted on a right to work check.
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It also includes some detailed Guidance on checking the right to work for Skilled Worker visa holders, particularly where they are undertaking “supplementary” employment. This is where they work additional hours in addition to their sponsored employment in specific permitted circumstances.
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Further information is provided for employing individuals holding a student visa in relation to how the checks should be made and the verification that must be held, along with when they are permitted to take up full time employment.
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The Government has reiterated that Biometric Residence Permits are being phased out and, as such, all physical permits are now being issued with a card expiry date of 31 December 2024, irrespective of when the individual’s leave actually expires.
The Guidance clarifies that employers should disregard the card expiry date and refer to the leave expiry date given on the online Home Office portal when checking the right to work and diarising follow up checks.
We expect further Guidance from the Home Office about the phasing out of physical BRPs as we approach the end of next year.
Why is it important?
All employers have an obligation to verify that individuals working for them have a valid right to work. If they fail to do so, and individuals are found to be working illegally, employers face illegal working penalties.
These include penalty fines of up to £20,000 per illegal worker, closure of the business, disqualification of directors and, in very serious cases, the risk of a criminal conviction (which carries the risk of an unlimited fine and a prison sentence of up to 5 years). This is in addition to the reputational damage and business disruption associated with addressing illegal working issues.
Organisations that hold a sponsor licence are under a positive expectation that they will comply with all immigration law requirements, including the obligation to undertake compliant illegal working checks on all staff. If they fail to do so, they are likely to find their sponsor licence is revoked.
This means that they will no longer be permitted to sponsor new migrant workers and any existing sponsored staff (irrespective of how senior or critical they are to the business) will usually have their leave curtailed i.e. cut short to 60 days. During this period, they will either need to find another sponsor or leave the UK.
Employers should also note that the Prime Minister has made it clear that he intends to free up Home Office resource during 2023 to allow for greater enforcement action against non-compliant employers. In this context, employers need to take immediate action to ensure that they are meeting the strict legal requirements.
What should employers do now?
Given the very serious consequences of getting these checks wrong, employers should:
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Check their policies and procedures to ensure they meet the up-to-date requirements of the Guidance;
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Review how they are engaging with IDSPs to ensure that they are undertaking compliant checks;
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Provide training for staff undertaking right to work checks to make sure that the checks are being properly implemented in practice;
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Audit existing right to work checks (and immigration compliance more generally) to flush out and address any issues.
With 2023 being heralded as “the year of compliance”, employers have no time to lose in acting on these matters.
Please get in contact with Laura Darnley or any member of our Business Immigration team if you would like to discuss these issues or understand how we can help you ensure compliance with these requirements.
