For employers with complex international hiring plans, seeking expert third-party advice on the changes to the Right to Work checking system is essential to ensure large financial penalties are avoided, argues Tijen Ahmet.
From 6 April 2022, the Home Office brought in some notable changes to the Right to Work (RTW) checking system, which now enable checks to be carried out electronically, as well as manually. The aim is to not only improve the process for employers, making it more efficient, but also increase security.
Digital checks are valid for all new employees starting after 6 April 2022, regardless of nationality. Until now, employers hiring British and Irish citizens have not had the option to carry out checks online, so this is a move to bring all employees in line with each other, no matter their citizenship.
While manual checks are still valid, it has become mandatory to carry out online RTW checks for individuals who hold Biometric Residence Permits (BRP), Biometric Residence Cards (BRC) or Frontier Worker Permits (FWP), as physical copies can no longer be accepted.
The need to carry out online checks for non-UK citizens means that these prospective and current workers will be required to access the Home Office online service. By doing so, it will generate a share code to be presented to their employer to check RTW status before employment can commence. From 6 April online checks can also be done on British and Irish workers with a valid passport via a certified digital identity service provider (IDSP). It’s important to note that the purpose of IDSPs is to validate that the ID provided is legitimate, not to confirm that the employee is who they say they are. Once the ID has been validated, the responsibility remains with the employer to complete their check in line with the Home Office guidance and obtain a statutory excuse.
This is a huge development, but despite these changes, the legal responsibility of completing RTW checks correctly still lies with the employer. Should any errors be made, the employer places themselves at risk of a potential civil penalty notice of up to £20,000.
While the share code provided by employees is a core part of confirming their RTW status online, employers must ensure that they have seen the employee in person either over video call – or from 1 October 2022, face to face – to be sure that the employee matches the identity they have provided.
Online checks will make it much harder for unscrupulous opportunists to get through, but again, this doesn’t mean employers can sit back and rely on technology to do the work for them. Similarly, if an IDSP is used for digital checks on UK employees, the responsibility doesn’t shift from the employer.
While online checks and use of IDSPs to carry out checks can accelerate the recruitment and onboarding process and enhance security, employers should still look to ensure that they are happy that the due diligence has been carried out correctly. This includes not only seeing the employee and their documentation, but being satisfied that it is genuine and retaining a copy in line with the Home Office guidance. It is also necessary to record expiry dates of visas for follow up checks if applicable.
A list of certified IDSPs is due to be published, and it is thought that they will require a subscription fee, at least while the system gets up to speed. Whilst this additional cost certainly won’t be welcomed by employers, IDSPs allow employers to outsource some of the work to help relieve the administrative burden, particularly for those that have moved to a more remote way of working.
In the future, UK Visas and Immigration is intending to completely digitise its borders, beginning with the RTW system, so getting to grips with the processes now will stand employers in good stead. However, for those unwilling to pay the fees for an IDSP, manual checks still remain valid for now.
Employers should also make sure that they are up to date with the changes to the right to work checklist. Failing to do so could lead to documents that are no longer accepted being used to prove right to work status, making the checks invalid.
While British and Irish citizens simply need to provide a copy of their passport to be granted the right to work until they leave their current business, international employees may be required to update their status during their ongoing employment in the UK. For follow-up checks on employees with a time limit on their visa, should they have a visa application pending with the Home Office while their visa expires, employers can still use the Home Office’s Employer Checking Service, which allows employers to obtain a six-month statutory excuse in the form of a Positive Verification Notice.
It may be a few months away, but employers should keep in mind that while the Covid-19 adjusted right to work checks have been extended to 30 September, from 1 October 2022, remote checks will no longer be allowed, whether a business is working remotely or not.
The purpose of the additional six-month period is to give businesses ample time to make necessary changes to onboarding processes and policies and develop a good working relationship with IDSPs.
In our remote world, online checks will offer an easier and safer option for employers, protecting them from unwittingly hiring someone who has played the system. However, it will take time to adjust, and employers must be aware of their responsibilities.
For employers with particularly complex international hiring plans, seeking expert third-party advice before navigating this new RTW system will help to ensure that the correct due diligence takes place, and hefty financial penalties are avoided.
Tijen Ahmet is a Legal Director and Business Immigration Specialist at law firm Shakespeare Martineau.
Tijen works with global UK businesses advising on strategic international recruitment and supports with immigration compliance facilitating assignments and relocation.
Tijen is widely recognised as an expert in UK business immigration. She represents high net worth entrepreneurs with inward investment and helps them navigate through the complexities of the rules and practicalities of relocation.
Tijen’s clients include senior HR teams of multi-nationals and SME’s, through to secure overseas talent through sponsorship visas.