< back
factory workers

By Vanessa Ganguin

Guide to employee Right to Work Checks – including the latest 2022 changes for Ukrainians and BRP holders

FAQ: What are the latest changes to Right to Work checks?

14 April 2022

The legislation and guidance around illegal working can be complex. Employers may face a range of tough sanctions, both civil and criminal if they are found to be employing individuals who do not have the right to work.

Human Resources staff can avoid this by ensuring full right to work checks are conducted in keeping with the latest Home Office guidance. We provide specialist advice on the range of illegal working offences, best practices to avoid them, how to mitigate and report lapses and also how to respond if you fall foul. Following a slow-down during the pandemic, the Home Office has resumed compliance visits and official figures show a big rise in penalties which can amount to up to £20,000 for each staff member illegally employed.

This year HR teams have many right to work changes to contend with. The Home Office have now extended remote pandemic checks until 30 September 2022. Employers will then have to choose between in-person checks for British and Irish citizens or using a certified identity service provider (IDSP) using Identification Document Validation Technology (IDVT) (see our guide below).

From 6 April 2022 employers are no longer permitted to accept some physical documents as evidence of right to work and instead are expected to use the free UK Visas & Immigration (UKVI) online checking tool for all biometric card holders. The latest Home Office guidelines were also updated on 6 April with an appendix to support employers seeking guidance on what documentation Ukrainian nationals will need to prove their right to work.

Below is our quick guide to protecting yourself with right to work best practice, based on the latest Home Office guidance in April 2022. There have been many changes to how right to work checks have been conducted over the past years and we can help audit your processes to check they were compliant at the time and therefor would protect you from prosecution.

We advise on all aspects of the ever-changing right to work check rules and how to avoid civil penalties, criminal sanction and related adverse consequences as a sponsor licence holder. To find out how we can help you keep on top of compliant right to work checks or to discuss any related UK immigration issues, please call us on 0207 033 9527 or click here to send us an email:

What is a statutory excuse and what does it protect employers from?

A statutory excuse is an employer’s defence against a civil penalty if an employee is found not to have the right to work in the UK. In order to establish a statutory excuse against a civil penalty in the event that an employee is found to be working illegally, employers must do one of the following before the employee commences employment:

  • a manual right to work check
  • a right to work check using IDVT via the services of an IDSP
  • a Home Office online right to work check

Below we have more details about all these options and when they can be used. Conducting any of these checks as set out in the Home Office guidance for employers and in the code of practice on preventing illegal working will provide you with a statutory excuse.

A civil penalty can mean a fine of up to £20,000 per illegal worker.

NB: If an employer hires someone they know or have reasonable cause to believe is working illegally they face criminal prosecution as well as an unlimited fine. Employers can also face being downgraded on the register of sponsors, or having their sponsor licence revoked altogether, all of which could be disastrous if a business is relying on sponsoring overseas nationals.

How to conduct a right to work check during the current temporary COVID-19 measures – what are the adjusted checks during the pandemic?

The Home Office have now extended remote adjusted pandemic checks until 30 September 2022. The new September date gives employers a longer transition period to “implement long-term, post-pandemic working practices” according to UKVI.

When conducting a right to work check during the temporary COVID-19 measures, employers must follow the three steps listed below:

  1. ask the prospective or existing employee to submit a scanned copy or a photo of their original documents via email or using a mobile app;
  2. arrange a video call and request them to hold up the original documents to the camera and check them against the digital copy of the documents (employers may want to take a screenshot to evidence this);
  3. record the date of the check and note it as “adjusted check undertaken on [insert date] due to COVID-19”.

NB: from 6 April 2022 employers are not able to rely on certain types of physical immigration documents, including BRPs, as evidence of right to work and will instead need to conduct online checks for people with such documents (see question below).

If the prospective or existing employee is not able to provide their documents, employers must contact the Home Office Employer Checking Service to confirm whether the person has a right to work in the UK. In such circumstances, the Employer Checking Service will send a ‘Positive Verification Notice’ which will provide the employer with a statutory excuse (to prevent a penalty) for six months from the date in the notice.

The Home Office has confirmed that sponsors will not be required to conduct retrospective right to work checks on those employees who had their right to work checked under the temporary COVID-19 procedure between 30 March 2020 and 30 September 2022 provided such checks were conducted fully in accordance with this procedure.

Which checks should now be done using the Home Office’s online right to work check tool?

Since 6 April 2022 employers are no longer be permitted to accept some physical documents as evidence of right to work. This includes Biometric Residence Permits (BRP), Biometric Residence Cards issued to family members of EEA migrants under the EU Settlement Scheme and Frontier Worker Permits for EEA migrants. Employers are instead be expected to use the free UK Visas & Immigration (UKVI) online checking tool for all biometric card holders as well as all those issued with an eVisa. Employers will no longer be able to accept a physical card for the purposes of a right to work check even if it shows a later expiry date.

Where someone is employed on or before 5 April 2022 and checks were made at the time using a physical document, employers will not need to do retrospective checks, although follow-up checks will still be required where someone has limited permission to stay in the UK.

What are the key changes to right to work checks for British and Irish citizens commencing on April 6 2022?

For British and Irish citizens – those unable to be checked on the free UKVI online portal, there will be a range of certified identity service providers (IDSPs) which will use Identification Document Validation Technology (IDVT) to conduct right to work checks and right to rent checks online too.

The changes are part of the Government’s digital identity framework. Landlords, letting agents and employers will be able to use new technology from certified providers to digitally carry out right to work and right to rent checks.

The Home Office COVID-19 concession described in the first question above has allowed companies to use remote checks instead of seeing job candidates in person during the pandemic. This has now been extended until 30 September 2022. Since the extensions to the temporary COVID-19 measures proved popular, especially with many working from home and in hybrid arrangements, a permanent system for such remote digital checks has been developed. Only unlike the Home Office online portal, checks for UK and Irish nationals have been outsourced to IDSPs. These certified companies will be able to obtain the documents that evidence prospective candidates’ identity, check their genuineness and history.

For the purpose of verifying identity for Right to Work checks through IDVT, only the following specified documents can be accepted:

  • valid British passports;
  • valid Irish passports; and
  • valid Irish passport cards.

Employers are not required to use an IDSP to verify the above documents and may choose to save money and conduct manual checks instead.

Where services of IDSPs are used, employers are encouraged to use IDSPs that are certified providers, provide appropriate training and guidance to human resources staff on things like what information they must obtain from an IDSP to confirm verification of identity, what the information can be used for, and any additional steps that must be taken to establish the right to work.

What steps should employers relying on IDSPs for right to work checks take to protect themselves?

Required steps to be taken by the IDSP

IDSPs must take all reasonable steps to check the validity of the document and take all reasonable steps to verify the prospective employee is the rightful holder of the document. The IDSP must also record the date on which the check was carried out in a format that cannot subsequently be altered.

For each identity verified by an IDSP using IDVT, the following information must be obtained during the check. This must be provided to the employer in a clear, legible format which cannot be altered and must be stored securely by the employer in electronic or hard copy for audit and investigation purposes:

  • Forename
  •  Middle names (if applicable)
  • Present surname(s)
  • Date of birth
  •  Image of the biometric page of the identity document, including details of:
    • the holder’s personal details including the name, date of birth and nationality;
    • the holder’s photograph; and
    • the date of expiry of the identity document.

In the case of an Irish passport card, an image must be taken of the document in full.

  • Photograph/image
    • IDSPs are required to verify that the image supplied with the IDSP check matches the identity document.
    • Employers are required to verify that the image supplied with the check from the IDSP matches the prospective employee.

A record should be kept that the identity has been verified, who the evidence has been checked by, as well as the date of the ID check.

IDSPs must also record the GPG45 profile (the stages of the identity checking process), although this is not sent to employers.

Required steps to be taken by employers

Where IDSPs are used, employers retain obligations that they must comply with under the Right to Work Scheme. Employers need to complete the following steps before employment commences to ensure a proscribed check has been undertaken, in order to establish a statutory excuse: 

  • use an IDSP to check a prospective employee’s valid British or Irish passport (or Irish passport card) using IDVT;
  • obtain an output of the IDVT identity check from the IDSP containing a copy of the IDVT identity check, and the document checked, in a clear, legible format that cannot be altered;
  • carry out their own due diligence to satisfy themselves to a reasonable belief that their chosen IDSP has completed the check correctly in the prescribed manner;
  • satisfy themselves that the photograph and biographic details (for example, date of birth) on the output from the IDVT identity check are consistent with the individual presenting themselves for work (i.e. the information provided by the check relates to the individual and they are not an imposter);
  • where names differ between documents, establish why this is the case and must not employ that individual unless they are satisfied that the documents relate to them. A statutory excuse will not be obtained where it is reasonably apparent that the prospective employee is not the individual linked to the identity which was verified by the IDSP; and
  • retain this information securely for the duration of employment and for a further two years after the employment has ended. The copy must then be securely destroyed.

What is the latest guidance for manual right to work checks conducted from 6 April 2022?

From 6 April 2022 employers have the option of using a certified Identity Service Provider (“IDSP”) to complete the digital identity verification and eligibility element of right to work checks for British and Irish citizens (see questions above for further details). Though they are still able to perform manual checks on British and Irish citizens from 6 April 2022, with the following guidance published on that date. (NB: Always check the latest Home Office employer guidance for changes.)

We have listed the documents employers can use in their groups below.

Step 1

Each prospective or current employee must provide:

  • one of the original documents alone, or two of the original documents in the specified combinations given in List A; OR
  • one of the original documents alone, or two of the original documents in the specified combinations given in List B Group 1; OR
  • one of the original documents alone, or two of the original documents in the specified combinations given in List B Group 2.

 

Step 2

Employers should check the validity of the document and satisfy themselves that the prospective or current employee is the person named in the documents they present. These documents must also show that they have permission to do the work in question.

Employers should then carry out the following steps when checking all of the documents presented by prospective or current employees. This may be done in person or via video-link (we would advise that this is only carried out in exceptional circumstances and should you wish to use video-link we suggest that you contact us before doing so, so that we can advise further). In both cases employers must be in the physical possession of the original document(s) and:

  • check that any photographs, where available, contained in the documentation are consistent with the appearance of the prospective or current employee when carrying out checks on them; and
  • check the dates of birth listed (where available) to ensure that these are consistent across documents and that you are satisfied that these correspond with the appearance of the candidate; and
  • check that the expiry dates of any limited leave to enter or remain in the UK has not passed; and
  • check any UK Government endorsements (stamps, Biometric Residence Permits, visas, etc) to see if the employee is able to do the type of work offered; and
  • that the documents are genuine and have not been tampered with and belong to the holder; and
  • if a prospective or current employee gives  two documents which have different names, ask them for a further document to explain the reason for this. The further document could be a marriage certificate, a divorce decree, a deed poll document or statutory declaration. Supporting documents should also be photocopied and the copy retained.
Step 3

Employers need to make a copy of the relevant page or pages of the document, in a format which cannot be subsequently altered, for example, a photocopy or scan.

For a passport or other travel document, the following parts must be photocopied or scanned:

  • for passports and travel documents, a copy should be taken of any page containing the holder’s personal details – in particular, any page that provides details of nationality, a photograph, date of birth, signature, date of expiry or biometric details; and
  • any page containing UK Government endorsements, noting the date of expiry and any relevant UK immigration endorsement which allows the employee to do the type of work offered.

Other documents should be copied in their entirety (e.g. both sides of the Biometric Residence Permit must be copied).

The employer must retain a record of the date on which the check was made. This can be by either making a dated declaration on the copy or by holding a separate record, securely, which can be shown to UKVI upon request to establish a statutory excuse. This date may be written on the document copy as follows: ‘the date on which this right to work check was made: [insert date]’ or a manual or digital record may be made at the time. It is also recommended that the person who undertook the checks and the copy includes their signature on the copy of the document.

Copies of documents should be recorded and kept securely, electronically or in hardcopy, for the duration of the individual’s employment and for a further two years after it ceased. By doing this, UKVI will be able to examine an employer’s right to the excuse if they detect anyone working illegally for them.

Step 4

Employers conducting prescribed right to work checks will establish a statutory excuse as follows:

  1. in List A:  the statutory excuse will be for the whole duration of a prospective or current employee’s employment because there are no restrictions on their permission to be in the UK. Employers do not have to repeat the right to work check;
  2. in List B: the statutory excuse will be limited because the prospective or current employee has restrictions on their permission to be in the UK and to do the work in question. In order to retain a statutory excuse, an employer must undertake follow-up right to work checks as follows:

List B Group 1 documents:

If the employee is able to produce a current document in this list, their employer should make a follow-up check using this document. The time-limited statutory excuse will continue for as long as the employee has permission to be in the UK and do the work in question, as evidenced by the document, or combination of documents produced for the right to work check.

If at the point that permission expires, an employer is reasonably satisfied their worker has an outstanding application or appeal or administrative review pending against a refusal to vary or extend their leave in the UK, the time-limited statutory excuse will continue from the expiry date of their permission for a further period of up to 28 days. This is to enable an employer to verify whether the employee has permission to continue working for them.

NB: during this 28 day period an employer must contact the Employer Checking Service and receive a Positive Verification Notice confirming the employee continues to have the right to undertake the work in question. A Positive Verification Notice means the statutory excuse will last for a further six months from the date specified in the Notice. A further check will need to be made upon its expiry. In the event of a Negative Verification Notice, statutory excuse will be terminated.

List B Group 2 documents:

If an employee holds one of the documents in List B Group 2, or is unable to present an acceptable document because they have an outstanding application with UKVI or an appeal or administrative review in respect of their leave, an employer must contact the Employer Checking Service and receive a Positive Verification Notice. Time limited statutory excuse will last for six months from the date specified in the Positive Verification Notice. A further check will need to be made upon its expiry.

On each occasion that a follow-up document check is undertaken, an employer should repeat the specified steps given above within the given time period and record the date of each subsequent check that has been carried out.

What are the documents that employers can use in in these right to work checks?

LIST A DOCUMENTS

(prospective or current employees with List A documents will not be subject to continuing immigration document checks)

LIST A – acceptable documents to establish a continuous statutory excuse – Employers will need to have on file a copy of one of the following for each prospective or current employee.
·       A passport (current or expired) showing the holder is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK; or

·       a passport or passport card (current or expired) showing that the holder is a national of the Republic of Ireland; or

·       a document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted unlimited leave to enter or remain under Appendix EU to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules; or

·       a current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on his/her stay in the UK; or

·       a current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer; or

·       a birth or adoption certificate issued in the UK together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer; or

·       a birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer; or

·       a certificate of registration or naturalisation as a British citizen together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.

If the prospective or current employee is unable to provide any of the documents from List A, see List B (below).

LIST B GROUP 1 DOCUMENTS

(prospective or current employees with List B Group 1 documents on file may be subject to continuing checks of his/her immigration documents)

LIST B Group 1 – documents where a time limited statutory excuse lasts until the date of leave expiry – Employers will need to have on file a copy of one of the following for each prospective or current employee.
·       A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question; or

·       a document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted limited leave to enter or remain under Appendix EU to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules; or

·       a current Immigration Status Document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.

If the prospective or current employee is unable to provide any of the documents listed above see List B Group 2 (below).

LIST B GROUP 2 DOCUMENTS

(prospective or current employees with List B Group 2 documents will be subject to more stringent continuing checks on his/her immigration documents)

LIST B Group 2 – documents where a time limited statutory excuse lasts for six months – Employers will need to have on file a copy of the following for each prospective or current employee.
·       A document issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules on or before 30 June 2021 together with a Positive Verification Notice from the Home Office Employer Checking Service; or

·       a Certificate of Application (digital or non-digital) issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules (known as the EU Settlement Scheme), on or after 1 July 2021, together with a Positive Verification Notice from the Home Office Employer Checking Service; or

·       a document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man showing that the holder has made an application for leave to enter or remain under Appendix EU to the Jersey Immigration Rules or Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 on or before 30 June 2021 together with a Positive Verification Noticefrom the Home Office Employer Checking Service; or

  • an Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service; or
  • a Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question.
If the prospective or current employee is unable to provide any of the documents listed above, please contact us.

 

What additional right to work checks should employers carry out with students?

If an employer wishes to employ or continue to employ a student who has a restricted right to work, they are required to obtain, copy and retain a copy of evidence from the student’s education sponsor, confirming the student’s term and vacation times over his/her period of study in the UK for which they will be employed.

UKVI considers acceptable evidence to be one of the following:

  •  a printout from the student’s education institution’s website or other material published by the institution setting out its timetable for the student’s course of study (do check the website to confirm the link is genuine); or
  •  a copy of a letter or email addressed to the student from his/her education institution confirming term time dates for the student’s course; or
  • a letter addressed to the employer from the education institution confirming term time dates for the student’s course.
    In addition, Students are only permitted to undertake a work placement when it is an integral and assessed part of their course.

What are the new right to work checks for Ukrainian Nationals granted permission under the Ukraine Family Scheme and the Homes for Ukraine Scheme?

In response to the ongoing Ukrainian crisis, the Home Office has introduced the Ukraine Family Scheme to enable Ukrainian nationals and their family members to come to the UK. The Ukraine Family Scheme allows immediate and extended family members of British Nationals and people settled in the UK to come to the UK. Applicants under this scheme:

  • must be applying to join or accompany their UK-based family member;
  • must be Ukrainian or the immediate family member of a Ukrainian national who is applying to the Scheme; and
  • must have been residing in Ukraine on or immediately before 1 January 2022.

The Government also launched the Homes for Ukraine Scheme. This scheme allows Ukrainian Nationals (with immediate family members who can be non-Ukrainian nationals), to be sponsored by UK residents, where those residents have suitable accommodation, for at least six months and have at least six months’ leave to be in the UK. Under both schemes, successful applicants can stay in the UK for up to three years. In each scheme individuals are able to work and access benefits in the UK.

More details on options for Ukrainian refugees and those employers, family and individuals keen to help them can be found here

Ukrainians with a valid Ukrainian Passport

A concession to the Ukraine Schemes introduced on 15 March 2022 allows those with a valid Ukraine passport to submit an application to either Scheme without attending an overseas Visa Application Centre (VAC) to submit biometrics. Those who are assessed without submitting their biometrics are issued with a permission to travel letter.

On arrival, Border Force stamp the passport with permission to enter the UK, valid for six months with no restrictions on taking employment or recourse to public funds (Leave Outside the Rules or “LOTR”). This is called a Code 1A or Amended Code 1 endorsement.  In a small number of cases, when the Schemes went live, a Code 1A was not available, in place of this a Code 1 was used with the “no recourse to public funds” scored out in ink and possibly initialled by the Officer. Similarly, a Code1/Code 1A may have been endorsed in Ukrainian passports, if those individuals had entry stamps to Ireland from 25 February 2022 the stamps were manually amended from ‘Leave to enter’ to ‘Leave to remain’ possibly with the Officer’s initials. There may be situations in which you identify an individual who has an Irish entry stamp in their passport but does not have a Code 1/Code 1A stamp and does not hold any other form of permission to stay in the UK. In these situations, you must point the individual to the Home Office to make an application to stay in the UK.

On page 65 of the Home Office Right to Work guidance here you can see an example of endorsed Code 1A and Code 1 stamps with an Immigration Officer’s date stamp.

Those with a stamp or a visa in their valid Ukrainian passport which gives permission to stay under the Ukrainian Schemes, have a time-limited right to work. If an employer manually checks this document and records it correctly, this will give them a time-limited statutory excuse. These endorsements are already included in the acceptable documents for a manual check under List B, Group 1 (see question on manual checks above). Employers will need to carry out a follow-up check of those individuals who have time-limited permission to work in the UK as described above. This should occur when their previous permission comes to an end.

Where Border Force have granted LOTR for six months, the individual will need to obtain a Biometric Residence Permit (BRP) which will be endorsed with up to a 36-month permission to stay. This can be done at any point during the six-months validity of the stamp. BRP holders will need to use the Home Office online checking service as set out in section 4 above to prove their right to work in the UK.

Any prospective employee who is a Ukrainian national who has not applied for permission to stay in the UK will not have a right to work. This means you should not employ them until they have taken action to regularise their status in the UK.

Ukrainian nationals who do not have a valid Ukrainian passport

If an individual does not have a valid Ukrainian passport, they will be required to provide their biometric information at a VAC and will then be provided with an entry clearance vignette attached to a ‘Form for Affixing the Visa’ (“FAV”). On page 67 of the Employer’s Guidance here an example of  a FAV can be seen. Where necessary, individuals can use their FAV document as proof of their right to work, in conjunction with confirmation from the Home Office Employer Checking Service in the form of a Positive Verification Notice (see question on manual checks above).

Shortly after arrival, a BRP is available for collection, and this can be used to access the Home Office online checking tool to prove a right to work (as in the second question above). This means, once they have collected their BRP employers are not required to make a check with the Employer Checking Service. Where employers contact the Employer Checking Service and Home Office systems show that the individual has a BRP available, employers will receive a response from the Employer Checking Service directing them to advise the individual to collect their BRP and prove their right to work using the Home Office online checking service. In this scenario Employer Checking Service will not issue a Positive Verification Notice to provide a statutory excuse and employers should use the online checking service.


For more detailed right to work advice and updates on these and other new immigration developments for UK businesses and firms abroad moving staff to the UK please contact us on 0207 033 9527 or enquiries@vanessaganguin.com.