New right to work check arrangements

From 1 October 2022 various changes to the right to work check regime will come into force and temporary changes introduced during the Covid-19 pandemic will cease to have effect.

After 30 September, it will no longer be possible to complete right to work checks remotely by using a video call to verify documents.

To establish a statutory excuse, employers will need to conduct a check in one of the following ways:

  • By undertaking a manual, in-person, Right to Work Check
  • By using the Home Office online checking service
  • By using an accredited provider of Identification Documentation Validation Technology (IDVT/IDSPs)

Which method to use will depend on the circumstances of the employee – guidance is listed below.

  • Those who provide Biometric Residence Permits, Biometric Residence Cards or a Frontier Worker Permit – Employers must carry out an online Right to Work Check as well as confirming the identity of the person presenting themselves for work.
  • Those holding digital status or an E-Visa (this includes those with settled/pre-settled status under the EUSS scheme or those who have been granted visas using the UK immigration ID check App) – Employers must carry out an online Right to Work Check as well as confirming the identity of the person presenting themselves for work.
  • Those not eligible for online checks such as British or Irish passport holders, or those with a visa vignette affixed to their passport – Employers must undertake a check using an accredited IDSP provider or conduct a manual, in-person check with original documents.

Tips for employers

To prepare for the changes, employers should consider the percentage of employees who hold various immigration documents and the rate of staff turnover to help decide whether it is worth using an IDSP. They should also consider how they will reinstate manual checks on relevant employees following the end of the temporary COVID-19 related concessions.

Additionally, employers should update internal right to work check policies and procedures in light of the upcoming changes. It is also advisable to provide staff refresher training to ensure that all those conducting right to work checks are familiar with the new requirements. Additionally, if employees have TUPE transferred, new employers are required to carry out checks in line with the updated guidance within 60 days, regardless of the method upon which checks were carried out by the previous employer.

It is also important for employers to ensure that those conducting right to work checks are sufficiently trained that understand when and how to use each method.

Penalties for non-compliance

Non-compliance with the new rules will continue to result in the issuing of penalties. Employers who fail to carry out the checks appropriately face civil penalties of up to £20,000 per illegal worker. Criminal penalties (unlimited fines and up to five years in prison), and the loss of any sponsor licences are also potential repercussions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.