Right to work checks- a modernised approach

The government has announced changes to modernise the “right to work” checks needed to avoid employing illegal workers in the UK. The changes will take effect from 28 January 2019.

The changes to take place on 28 January will mean that employers can use an online service to conduct the necessary right to work checks on migrants, rather than viewing and copying original documents. This is welcome news for employers, many of whom have expressed frustration with the current document-heavy process.

Employers of non-EEA nationals who hold biometric residence permits (BRPs) or biometric residence cards and EEA nationals with settled status or pre-settled status under the EU Settlement Scheme can use the service. UK nationals, EEA nationals who do not have settled status under the EU Settlement Scheme, and non-EEA nationals who have a visa in their passport rather than a BRP will continue to prove their right to work by showing original documents, such as their passport.

The new online right to work check system will work on the basis that a prospective or existing employee will view their own immigration record, and then share this with the relevant person within your organisation, i.e. an HR manager. The relevant person will then receive notification that they have an immigration record to view. By viewing the record and conducting a number of checks, a statutory excuse against a civil penalty will be established.

The following checks must be completed when using the online service:

  • the check must confirm the employee is allowed to work in the UK and perform the work in question; and
  • the photograph on the online right to work check must be of the employee.

A copy of the online check must be taken and retained for at least two years after the employment ends.

Additionally, requirements for Tier 4 student visa holders will continue, i.e. an employer must obtain and retain confirmation of term and vacation dates.

The new system will be optional to use. Employers and individuals can choose whether to use the online system or the existing document-based checks.
A revised draft Code of practice on preventing illegal working accompanied the statutory order introducing the change. The Code can be found here:   https://www.gov.uk/government/publications/illegal-working-penalties-codes-of-practice-for-employers-2018.

The website for prospective and existing employees to check their right to work and share details with you is https://www.gov.uk/prove-right-to-work.

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Verity Buckingham

About Verity Buckingham

Verity is experienced in all aspects of employment law and corporate immigration matters. She deals mostly with corporate clients advising on contentious and non-contentious employment matters. Verity's contentious practice includes defending claims in the Employment Tribunal and experience of Employment Appeal Tribunal litigation in relation to claims of unfair dismissal, discrimination, equal pay and whistleblowing.

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