Changes to simplify right to work checks

Two changes to the right to work check rules, intended to simplify the checking process, come into force on 28 January.

What are the consequences of employing an illegal worker?

Employers have a duty to prevent illegal working. Those who employ someone without the right to work in the UK can face a civil penalty (a maximum fine of £20,000 for each illegal worker). If an employer carries out the correct right to work checks, it will have a "statutory excuse" against liability for that civil penalty.

The details of employers who have received a civil penalty for illegal working are placed on a public register. A civil penalty can also impact on an employer's ability to sponsor migrant workers on Tier 2, 4 or 5 visas. The latest Home Office guidance for employers on right to work checks is available here.

There is no statutory excuse if the employer knows or has reasonable cause to believe it is employing an illegal worker. In that case, the employer will commit a criminal offence and could face a five year prison sentence and/or an unlimited fine.

What changes are being made to right to work checks?

An online Right to Work Checking Service has been available since April 2018, but the current rules mean that employers must also check paper documents in all cases. From 28 January 2019, employers will in some cases be able to rely solely on the online check without having to also check paper documents. This change will only apply where the employee has an immigration status which can be checked using the online service. This includes non-EEA nationals who hold biometric residence permits or biometric residence cards and EEA nationals who have been granted settled status under the EU Settlement Scheme.

An employer using the online service will be excused from a civil penalty for employing an illegal worker if the online check confirms that the employee is allowed to work in the UK and perform the work in question. The employer will still need to satisfy itself that any photograph on the online right to work check is of the employee and to retain a copy of the online check for at least two years after the employment ends.

There is no compulsion for either employers or individuals to use the online checking service.

A further change will allow UK nationals without passports to demonstrate the right to work by producing a National Insurance number and a short birth or adoption certificate (which can be obtained without charge) rather than the full certificate.

The draft updated Illegal Working Code of Practice is available here.

Other checks to make when recruiting

Readers will be aware that the right to work checks are just one of a number of background checks which should be made before taking on a worker. These include, for example, checks on safeguarding concerns, criminal record, references and restrictive covenants which should be covered as part of the recruitment process. An offer of employment should be made conditional on the employer being satisfied of the outcome of any relevant checks.