New online service simplifies UK right to work checks

There is a significant number of non-UK nationals working in the UK, and the number is growing. According to the most recent data from the Office for National Statistics, there are 32.64 million workers in the UK. Since the Brexit referendum on 23 June 2016, the number of non-UK nationals from the EU working in the UK increased by 237,000 to 2.38 million, and the number of non-UK nationals from outside the EU working in the UK increased by 130,000 to 1.32 million.

It’s no secret that migrants coming to the UK from other EU countries was a critical reason many UK voters decided to leave the bloc. Former UK Prime Minister Theresa May emphasized this when laying out her initial Brexit plan in January 2017. She declared, “the message from the public before and during the referendum campaign was clear: Brexit must mean control of the number of people who come to Britain from Europe. And that is what we will deliver.”

It’s safe to say May’s successor Boris Johnson will not abandon this particular element of May’s Brexit plan, and that the UK government is serious about immigration control, particularly as it relates to non-UK nationals in its workforce.

One of the primary mechanisms for exercising this control is the UK’s Right to Work Checks programme. It requires UK employers to carry out a series of checks before hiring someone to “make sure the individual is not disqualified from carrying out the work in question by reason of their immigration status.” Workers with time-limited permission to remain in the UK must confirm their eligibility to work prior to their permission expiring.

Employers shouldn’t lose sight of the fact that right to work checks must be carried out for all new hires, regardless of nationality. In the case of a UK citizen or permanent resident, the employer can in most cases simply verify that the worker has a valid passport or permanent right to remain in the UK. The employer should keep a copy of the documenation, signed by the verifier, and retain the copy in the employee’s file for the duration of employment and for two years thereafter.

Multinational organizations should also keep in mind that the UK is not alone in requiring right to work checks and the retention of related documents. Such checks should be an integral part of a company’s hiring procedures, even when local laws don’t require a formal work permit.

The new online employer checking service option

Until this year, UK employers had to acquire physical documents from their applicants as proof of the applicants’ right to work in the UK. Many have found this process outmoded and needlessly cumbersome, particularly in cases involving non-UK nationals, where there may be a lack of awareness about what constitutes a valid right to work. Now, in certain common situations UK employers may fulfil their legal responsibilities using an online Employer Checking Service. The service provides current, real-time information on migrants’ right-to-work status.

In a government press release about the change, Immigration Minister Caroline Nokes said the online service “makes the checks simpler for employers and provides greater security as they no longer need to rely on physical documents when checking migrants’ status, further reducing the risk of forged documents being presented. … Above all, our new checking service makes it easier than ever for migrants to view and prove their right to work in the UK.”

Who can use the new service

The online service is voluntary for both employers and individuals. For their part, migrant workers may prove their legal work status either by using the new the online checking service or the long-standing physical document checking service.

It should be noted that for UK nationals and some non-UK nationals, the document checking service will remain the only option. The online checking service may be used by nationals of European Economic Area (EEA) countries who have settled status under the EU Settlement Scheme (put in place to allow EEA citizens to remain in the UK after Brexit). Non-EEA nationals holding biometric residence permits or biometric residence cards may also use the online service. Others must continue to demonstrate their right to work through approved physical documents, such as passports.

The online process

The process for using the online system involves the individual applicant viewing their own Home Office right-to-work information. They may if they choose share the information with their prospective employer by providing a share code, which is valid for 30 days.

The employer can access the individual’s record by entering the share code and the individual’s date of birth on the employer’s section of the online system. The employer’s section is called “View a job applicant’s right to work details.” The Employer’s Guide to Right to Work Checks clarifies that employers must access the employer’s section of the system to verify right to work, and that employers “will not establish a statutory excuse by viewing the migrant part of the service.”

The employer must verify that any photograph on the record is of the applicant, and retain a clear copy of the response provided by the online system. Employers must securely retain the copy for the duration of applicant’s employment and for another two years after the employee terminates. The employer must also be able to quickly produce the copies in the event UK authorities request them.

Penalties for non-compliance

The consequences of failing to properly perform right to work checks in the UK can be severe. According to the government’s Penalties for employing illegal workers page, “You can be sent to jail for five years and pay an unlimited fine if you’re found guilty of employing someone who you knew or had ‘reasonable cause to believe’ did not have the right to work in the UK.” Moreover, you can be penalised for employing someone without the right to work if “you did not do the correct checks or … did not do them properly.” This may result in a civil penalty (fine) of up to 20,000 pounds per illegal worker.

Other checks

Employers should note that the UK’s right to work check is just one regulation among many an employer must consider when compliantly hiring a worker in the UK. You must for example advertise the role and recruit employees fairly under local laws, including avoiding discriminating against anyone due to disability, age, sex or any other protected characteristic. In some cases — such as when hiring for a job in healthcare — you may need to check the criminal record of the applicant by getting a Disclosure and Barring Service (DBS) check. You’ll also need to determine if you must place the new employee in a workplace pension scheme. And when all the pre-employment steps are completed, you’ll need to provide HMRC with certain required information (such as the employee’s date of birth and start date) before the individual’s first pay day.

There are of course many other required and commonly recommended steps employers should take when hiring a new employee, from complying with national minimum wage laws to providing competitive salaries and benefits that don’t compromise the employer’s bottom line. The UK’s recent changes to the right to work checks are a useful reminder of these steps. They’re also a reminder that in all countries labour requirements constantly evolve and sometimes — as in this case — may actually become easier to fulfil.