Right to Work checks in 2019 – employers take note

After almost five years, the Home Office has updated its Code of Practice on Preventing Illegal Working, and it's not before time. As all employers ought to be aware, the Code of Practice sets out the prescribed Right to Work checks that employers should conduct to avoid a civil penalty through employing someone to work illegally.

New Code of Practice

The last Code of Practice on illegal working was issued in May 2014 so was long overdue an update. The new Code reflects the Immigration (Restriction on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018 which provides that employers may establish a statutory excuse against liability for an illegal working civil penalty by conducting an online right to work check using the Home Office Online Right to Work Checking Service. This means that employers can in some cases use an online service to conduct the necessary right to work checks on migrants, rather than viewing and copying original documents.

Who can use the online right to work checking service?

Employers of non-EEA nationals who hold biometric residence permits (BRPs) and EEA nationals with settled status or pre-settled status under the EU Settlement Scheme can use the new online service. UK nationals, EEA nationals who do not have settled status under the EU Settlement Scheme, and non-EEA nationals who have a visa in their passport rather than a BRP will have to continue to prove their right to work by showing original documents, such as their passport.

How it works

The new online right to work check system will work on the basis that a prospective or existing employee will view their own immigration record, and then share this with the relevant person within their employer organisation, such as an HR manager. The relevant person will then receive notification that they have an immigration record to view. By viewing the record and conducting a number of checks, a statutory excuse against a civil penalty will be established.

The following checks must be completed when using the online service:

• the check must confirm the employee is allowed to work in the UK and perform the work in question; and
• the photograph on the online right to work check must be of the employee.

A copy of the online check must be taken and retained for at least two years after the employment ends. Additional requirements for Tier 4 student visa holders will continue.

Optional - for now

The new Code, which became effective on 28 January 2019, will be optional to use for the time being; employers and individuals can choose whether to use the online system or the existing document-based checks. However, this change seems to mirror the increasingly online approach of the Home Office. If I were a gambler, I'd put my money on online checks eventually becoming compulsory. Only time will tell.

For further advice, please contact us in London (West Drayton) on 01895 449288 or in Hertfordshire (St Albans) on 01727 840900 or by email via our contact page.