Having been extended on a number of occasions, the COVID adjusted Remote Right to Work Check will finally come to end on 30th September 2022.
These provisions have been in place for more than two years, allowing employers to remotely check employees’ right to work in the UK, without meeting face to face.
As the threat from COVIDrecedes, these emergency measures are no longer needed. Especially as they have now been replaced by a mixture of in-person manual checks and a number of online checks.
One of these on-line checks is a new system. From 1st October 2022, employers can use certified Identity Service Providers (IDSPs) to complete their digital right to work checks for British and Irish workers. These checks use Identity Document Validation Technology (IDVT), another new acronym from the Government.
Importantly, some of the providers offer a full Right to Work checking service, greatly simplifying the process for all employees, wherever they are from, if you do not mind paying for it.
These are significant changes to the previous procedures. Those involved in employing anyone need to study these matters carefully. Full details, and they are very long and involved, can be found here.
Below, we have summarised the main requirements. Remember, we are HR experts so if you are not sure, consult an immigration expert.
Legitimate Checks do not need to re-done
Originally, the Government had stated that once the temporary Remote Checks period had come to an end, all checks would have to either be verified or be repeated in person. But now that is no longer necessary.
So, the good news is that any legitimate check, properly carried out before 30th September 2022 will not have to be re-done, even if carried out remotely.
Of course, if such checks reveal the Right to Work is a time limited one, they will still need to be followed up at the appropriate time.
Are Right to Work Checks mandatory?
According to the Government’s own website, RtoW Checks should be done every time a new employee join. And, this requirement applies equally to UK, Irish, European and workers from anywhere else.
Exactly how to do the check will vary depending on their nationality and their status. The Government has a good questionnaire to show what type of check is needed.
This is not a full list below, as there are too many small subtleties to list here, but it does give a quick guide as to what might be required. Broadly speaking, most overseas citizens need to be checked on-line for free, British and Irish citizens can be checked manually for free or on-line for a fee.
British and Irish Citizens
For the time being, the traditional, in-person manual check can still be done for this group. This will generally be done with the employee’s passport. A full list of valid documents can be found here Right to work checklist – GOV.UK
But the IDSP on-line check has now been introduced. To date, more than 10 providers have been approved, with the cost of a single check as low as £9, though it does vary between providers. A current list is here: ID Service Providers – GOV.UK
The crucial point is that the test is to prove the identity of the individual and that they are British or Irish citizens, and so have a Right to Work in the UK. Employers will have to either verify their identity:
- With a traditional in-person, manual check on valid (not necessarily current) documentation.
- For those with a valid, up-to-date Biometric passport, an on-line check with an IDSP can be done remotely at a cost.
EU, EEA and other Overseas Citizens
The EEA includes citizens of the EU, Iceland, Liechtenstein, Norway and Switzerland.
In general, everyone from outside Britain and Ireland falls into three categories:
- Those with Indefinite Leave to Remain in the UK
- Those who arrived in the UK on or before 31st December 2020, and who have successfully applied for pre-settled or settled status (EUSS)
- Those with none of these statuses who can now only work in the UK on a sponsored work visa
The first category can still be checked manually if they have the right documentation or, if they have an online account, through the Home Office checking service – they will need to provide a Share Code to allow access to their record.
The second category can only be checked with a share code in a similar fashion. As you need to check their EUSS status, this is not obvious from their documentation.
The final category can only be employed on a work visa now. To do that, you will have to become a Sponsor (this takes 8-12 weeks) and to pay for the relevant visas. It is not cheap and beyond the scope of this article.
But if you need to know more, this is a good starting point: UK visa sponsorship for employers: Overview – GOV.UK
Many employers have become familiar with the online check for EU and EEA nationals who qualify for settled and pre-settled status.
But, until 6th April, employers had also been able to take copies of their Biometric Residence Cards and Permits. This will no longer be possible and the free online checking service will be the only way to check this and show a “Statutory Excuse”.
Permanent or Temporary Check (that needs to be repeated)?
Carrying out Right to Work checks is something that all employers should know about. It is mandatory to carry these out for all new employees before they start work.
For those that have a permanent right to remain in the UK – British and Irish Citizens, those with EU Settled Status (not pre-settled) and those with Indefinite Leave to Remain only have to be checked once.
Those with a time limited Right to Work will have to be checked again when that time runs out, preferably just before.
It is the re-checking process we suspect which is where most employers will fall down. Many are quite assiduous at checking people’s Right to Work when they first joined the organisation, but singularly fail to follow up and recheck their permission as prescribed by the law.
Make sure you diarise such checks and have a good follow up system.
Audit your current employee records
Any audit of your workers could lead to embarrassing situations, and indeed, we have dealt with employers who have found themselves in this situation.
In almost all cases, it has not meant that individuals are not allowed to work in the UK, simply that their paperwork is not up-to-date, and in some cases, the individual them self has not renewed it.
The risk to the employer, however, is an expensive fine, so make sure you have a robust system in place, especially if you employ a lot of existing non-UK nationals. If you do not employ many/any non-UK nationals, do not think it is unimportant. Just checking people who look/sound different is a good way to generate a race discrimination claim.
The UKVI has stated its intention to put all checks online by 2024.
The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice.