How Employers Should Be Performing Right to Work Checks

Posted on: 26th Jan 2022 by: Demos HR Solutions

Demos HR Solutions How Employers should be conducting Right to Work Checks
Demos HR Solutions How Employers should be conducting Right to Work Checks

It is an offence to knowingly employ anyone who does not have the right to work in the UK. With the different variants of Covid-19 continuing to have an impact on businesses and recruitment processes, the temporary digital checks which were due to stop in August 2021, have been kept in place and employers must continue to use this method, or the manual method until 5th April 2022. If employers can show they have conducted either manual Right to Work document checks or the COVID-adjusted rules during the period of the temporary scheme’s validity (between 30 March 2020 and 5 April 2022 inclusive), they may be able to defend allegations of illegal working. Below we outline how both the manual and temporary checks should be carried out.


How to carry out a digital Right to Work check under the temporary scheme

  • ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app
  • arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents, record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”
  • if the worker has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system you can use the online right to work checking service while doing a video call – the applicant must give you permission to view their details on the employee portal. (please see section below ‘Using the online Employee Portal)

For any checks made under the temporary scheme, the Home Office has stated that employers should clearly mark the records with the following words: “adjusted check undertaken on [insert date] due to COVID-19”.

The government guidance states that there is no requirement for employers to carry out retrospective checks on those who had a COVID-19 adjusted check between 30th March 2020 and 5th April 2022 (inclusive).


How to Carry Out a Manual Right to Work Check

If your recruitment processes have not been affected by Covid-19, employers can continue to carry out manual Right to Work checks according to current legislation as follows:

  1. Obtain an original document from the applicant using the Government's list of acceptable documents.
  2. Check the validity of the documents by cross-referencing D.O.B for example, in the presence of the applicant.
  3. Make a clear copy for your retention, ensuring you add the following wording onto the document: “The date on which this right to work check was made: [insert date]”


Right to Work Checks for EEA and Irish Citizens

Since 1st July 2021, EEA citizens and their family members are required to have immigration status in the UK. They can no longer rely on an EEA passport or national identity card, which only confirms their nationality, to prove their right to work. They are required to provide evidence of lawful immigration status in the UK, in the same way as other foreign nationals.

There is no requirement for a retrospective check to be undertaken on EEA citizens who entered into employment up to and including 30th June 2021.

Irish citizens continue to have unrestricted access to work in the UK. From 1 July 2021, they can prove their right to work using their Irish passport or Irish passport card, or their Irish birth or adoption certificate 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.


Using the online Employee Portal

The service operates on the principle that a prospective employee is able to view their own immigration status before deciding to share it with an employer. Accessing an employee portal (at https://www.gov.uk/prove-right-to-work), the candidate is able to see their information before generating a share code to provide to an employer, either directly or via an email from right.to.work.service@notifications.service.gov.uk.

Employers MUST NOT use the employee portal to confirm right to work under any circumstances. In the event that an employee is found to be working illegally, the employer would have no defence (‘statutory excuse’) against a civil penalty of up to £20,000 per illegal worker if the right to work check was reliant on the employee portal.

To correctly carry out a check using the online service, the employer must access the employer portal at https://www.gov.uk/view-right-to-work, entering the employee’s date of birth, the share code (provided by the employee) and the name of the employer.

Once inside the employer portal the page will display the employee’s name and photograph. It will also detail their permission and any restrictions to their work and also the expiry date of their leave to remain if it is limited.


Right to Work Checks after 6th April 2022

From 6th April 2022, it will be unlawful to utilise the temporary digital Right to Work check, relying on scanned or digital copies of original documents, or viewing the documents via video call. The Government has announced it will share new guidance effective from 6th April 2022 which will include a new digital solution to include many who are unable to use the Home Office online checking service, including UK and Irish citizens. This will enable checks to continue to be conducted remotely but with enhanced security.

Furthermore, from 6th April 2022, Biometric Residence Permit holders, Biometric Residence Card holders and Frontier Worker Permit holders will only be allowed to prove their eligibility to work through the Home Office online service. Employers will no longer be able to accept physical BRPs, BRCs or FWPs as evidence of the right to work.


Further information

On 17th January 2022, the government updated its guidance on how to carry out a Right to Work check on their website here:

An employer's guide to right to work checks: 17 January 2022

If you require further support with Right to Work checks before the temporary measures are revoked on 5th April, please speak to Debbie at Dêmos HR Solutions on 07974 695 365, or complete our contact form, for friendly, professional advice.

Tags: Right to Work, Digital Checks, Manual Checks, Employee, Employer, Settled Status, ,