A guide to conducting Right to Work checks

All employers in the UK are placed under a positive duty to prevent illegal working, and therefore required to conduct right to work checks in accordance with the Home Office guidance. You must conduct right to work checks regardless of the individual’s nationality and immigration status to avoid potential discrimination.

Conducting a right to work check in accordance with the Home Office guidance provides a statutory excuse to the employer against a civil penalty. You will not have a statutory excuse against a civil penalty if you rely on a third party to conduct checks and the individual is found to be working illegally. Employers must perform the appropriate check from one of the following prior to the commencement of employment.

1. A manual right to work check
2. A right to work using ID Validation Technology thorough an ID Service Provider
3. An online right to work check

Key changes introduced in April 2022 for conducting RTW checks for visa nationals

Employers are no longer able to accept Biometric Residence Cards, Biometrics Residence Permits and Frontier Work Permits as evidence of an individual’s right to work in the UK. The employer must conduct a Home Office online right to work check, check the identity of the individual presenting themselves for work, and retain the evidence for duration of the employment plus two years after the employment has ended.

Employing international students

Employers must carry-out their checks as not all international students are entitled to work in the UK. The permission to work in the UK would be endorsed on their visa document in their passport and the Biometric Residence Permit (BRP). Employers cannot accept the visa document or BRP, and therefore must conduct an online Right to Work to have a statutory excuse against a civil penalty. The candidate will need to provide you with a sharecode and their date of birth for you to conduct the online check. You will need to verify the identity of the candidate and check for any restrictions of hours and type of work.

Limitation of hours during term time for students

The endorsement on the document (visa or BRP) and the result from the online check should refer to the permitted number of hours per week during term time (e.g., 10 or 20 hours per week). Employers must therefore also obtain, copy and retain details of the academic term and vacation times covering the duration of the period of study in the UK.

Students, that have the right to work, are permitted to work full-time before commencement of their course, during vacations, and after they have competed their course providing, they still have valid permission to stay and work in the UK.

Using the Employer Checking Service

Employers are unable to conduct online right to work checks where the individual submitted an application prior to the expiry of their visa and is awaiting a decision on the application or filed an administrative review or appeal against a decision of the Home Office. The employer must use the Employer Checking Service in these cases and the individual may continue employment providing the result shows a Positive Verification Notice. You must advise the individual to update you on the outcome of their pending application, administrative review or appeal.

Does a Positive Verification Notice (PVN) provide a statutory excuse?

A statutory excuse against a civil penalty is established for employers if you are issued with a Positive Verification Notice. Employers must check the relevant sections for any restrictions on the type and hours of work permitted. You should also have reasonable belief as an employer that the individual’s circumstances have not changed, and they maintain a right to work in the UK.

You may request evidence of submission on an in-time application, admistrative review or appeal. A copy of the online application form should show the individual’s details and date and time of submission of application.

Can you employ individuals that are sponsored by a different employer in the Skilled Worker category?

The general rule is that you must be an approved sponsor licence holder to sponsor a nonsettled worker. However, sponsored Skilled Workers are permitted to take up supplementary employment (part-time), subject to the following conditions:

• The supplementary employment is no more than 20 hours per week and must be in the same role (occupation code) as their main job or a job listed on the Shortage of Occupation list; and
• The supplementary job must be outside the hours of their main job.

Biometric Residence Permit

Biometric Residence Permits (BRPs) have an expiry/valid until date of 31 December 2024. This is part of the Home Office's plan to digitalise the process for visa nationals to prove their immigration status in the UK.

Employers conducting right to work checks do not need to conduct follow-up checks on 31/12/2024 and should rely on the date and information verified through the online right to work check.

Penalties and Sanctions for employing illegal workers

It is a criminal offence to work illegally in the UK and employers may face imprisonment for knowingly employing an illegal worker. There are a range of sanctions that may be imposed for failing to perform the prescribed checks and seriousness of the offence. These include:

• A civil penalty of up to £20,000 per illegal worker;
• Seizure of earnings made as a result of employing illegal workers;
• Suspension and/or revocation of sponsor licence; 
• Your company name being listed in the publication of non-compliant employers resulting in reputational damage for your organisation;
• Not being able to sponsor migrant workers in the future;
• Disqualification for company director(s);
• Closure of business and a compliance order issued by the court;
• Report made to a governing body (if applicable); and
• A criminal conviction carrying a prison sentence of up to 5 years and an unlimited fine.

 

Ikram Malik Corporate Immigration Partner ikram.malik@jmw.co.uk 07547 661 714