Right to Work checks for employers – Prime Minister pledges to tackle illegal working

In December 2022, Prime Minister Rishi Sunak made a statement in Parliament setting out his five-point plan to crack down on illegal migration to the UK and this included a pledge to increase raids on illegal working by 50%. The recent statistics published by the Home Office show there has been a significant increase in Home Office raids and penalties being issued to employers for breaches of Right to Work laws.

Employers in the UK are under a legal duty to establish that every employee has a Right to Work. Employers must undertake a Right to Work check before they employ any person and they must continue to establish a Right to Work for all employees for the duration of their employment.

The number of Right to Work checks, who they should be applied to and when, can have employers and HR professionals tearing their hair out.

This article seeks to break the checks down and hopefully should leave the reader with a better understanding of how to navigate the Right to Work checking system.

First for the scary bit – Penalties for employing illegal workers

If an employer is found to have employed an illegal worker, they may be liable for a Civil Penalty or in the worst case be subject to Criminal Prosecution.

Civil Penalties for employers caught employing an illegal worker can include the following:

• First offence £15,000 fine per illegal worker
• Subsequent offence £20,000 fine per illegal worker
• Revocation of Sponsor Licence meaning end of employment for all sponsored workers
• Loss of Liquor Licence
• Disqualification from becoming a company director for 6 years

If subject to a Criminal Prosecution in a Sheriff Court, on conviction a Sheriff can impose a 6 month prison sentence, a fine of up to £5000 or both.

The impact of receiving a Civil Penalty or being subject to Criminal Proceedings for employing illegal workers can be devastating on a business financially and reputationally, and on the employer personally.  The level of the fines may mean the survival of a business is put at risk. Further serious consequences can include losing licences including a liquor licence and a Sponsor licence. The loss of a Sponsor Licence has the result that sponsored workers can no longer work for the employer. At the very worst, if the employer is subject to criminal proceeding and a conviction is received the employer can receive a prison sentence of up to 6 months.

Why the Right to Work checks matter

If an employer conducts the correct Right to Work check, at the correct time and in the correct manner, if it later transpires an employer has inadvertently employed an illegal worker, by having carried out the Right to Work check the employer has established a defence against any Civil Penalty. This defence is known as having a “Statutory Excuse”.

The Right to Work checks

There are four types of Right to Work check:

• The manual check – mostly for British/Irish nationals (although a few other exceptions apply for a limited period).
• The Digital Check through an IDSP – the Home Office has approved certain digital companies to provide digital checks via the use of an App – only for British and Irish nationals who have a valid passport.
• The Home Office’s online Right to Work check – for every non-British/Irish national who has a valid visa or other status that can be verified through the Home Office’s online system.
• The Home Office’s Employers Checking Service – an online service employers use to submit a request to the Home Office to establish a person has a Right to Work when the person has a specific visa application outstanding with the Home Office and awaiting decision or when the person’s existing visa has expired but they have made an application to extend their status or are appealing a refusal to extend their status.

Which check, when and for who?

Manual and Digital RTW check

A manual check, which means a manual inspection of valid documents, can be undertaken for British and Irish nationals by obtaining and inspecting:

• A British or Irish passports (current or expired), or
• If no British passport, a Birth Certificate issued in the UK, together with an official document giving the person’s permanent National Insurance number issued by a government agency or a previous employer. (NI Card, letter from HMRC, P45, P60)

After an employer has established the Right to Work of  British or Irish national they have obtained a permanent “statutory excuse” and no future Right to Work check is required.

A manual check is also possible for non-British/Irish nationals who do not hold a BRP card. These are mostly people who obtained status many years before BRPs were introduced. These types of visa status are seen very seldomly by employers and are not being considered in this article.

However, the one fairly common category of non-British/Irish nationals who do not have a BRP are those who have just arrived in the UK. When they first arrive in the UK they do not yet have their BRP(they collect the BRP soon after they arrive from a Post Office), but instead they have a vignette(sticker) in their passport confirming they have been granted permission to enter the UK. These categories could be newly arrived students, people on family visas or skilled workers, to name a few common visa categories. The vignette in their passport is normally valid for 3 months(the time allowed for them to travel to the UK). An employer can manually inspect their passport and the vignette to establish their Right to Work. This manual check is valid for the duration of the vignette. The employee should be encouraged to collect their BRP as this then allows the online Right to Work check(more on this below!)

Digital RTW check for British/Irish nationals

The second type of check for British and Irish nationals is the digital check. Time for some clunky acronyms. The digital check is provided by IDSPs – Identity Service Providers -Private companies certified by the Government to conduct checks remotely via digital technology. The digital check they provide is  – IDVT – Identity Document Validation Technology – the name of the technology(app) they will use to carry out the Right to Work check on employer’s behalf.

The digital apps are currently chargeable by the Home Office certified private companies. The most obvious benefit of using the digital apps is two fold. Firstly, for large employers and recruitment processes that are not in-person the digital apps facilitate establishing a prospective employee’s Right to Work. Secondly, the apps are provided by private companies that the Home Office have certified to conduct Right to Work checks. Although employers must inspect their final reports and be satisfied the checks properly relate to the prospective employee, the digital apps provide an employer with an increased level of confidence and practical efficiency.

The rest of the World’s nationals

For all non-British or Irish nationals, they legally reside in the UK by currently holding or applying in the correct time-frame for various types of immigration status. What check is done depends on their status.

The Home Office’s online Right to Work check

If someone has existing immigration status that has not expired, an employer can establish their status and establish their Right to Work though this online service. The employee applies for a “share code” which they pass to the employer to use for the online right to work check. The online Right to Work check will show on screen the person’s basic details (photograph, nationality, date of birth) and show when they have permission to work until and if there are any time or job restrictions in respect of their employment. The person’s status will be either Time-Limited(a future expiry point detailed) or Indefinite(they have a permanent Right to Work).

For those with indefinite they are in the same category as British and Irish nationals – after the check has been properly conducted and their Right to Work established no future check is required. A permanent “statutory excuse” has been established.

The Home Office’s Employer Checking Service

More on the “time-limited” visas. When a person’s time-limited visa is due to expire if they wish to remain in the UK legally they require to apply for further permission from the Home Office. This could be an extension of their present visa, an application to settle permanently or an application under a different visa category. The Home Office do not make instantaneous decisions so there is a period when a person has properly applied for further permission to remain legally in the UK, but that application is with the Home Office to be decided and they therefore have no BRP which confirms their present status.

In these cases, they cannot provide a “share code” to their employer to use the online right to work check.

Instead an employer must apply to the Home Office using The Employer Checking Service. The Home Office will then issue one of two notices to the employer:

A Positive Verification Notice – this notice establishes for 6 months that an employee has a Right to Work. It means the Home Office have traced an application and know it has been made before the expiry of the previous visa but they have not yet considered and decided the application. They provide the notice as valid for 6 months as that has been decided as a reasonable period by which they will have decided most visa applications.

A Negative Verification Notice – this notice establishes that the Home Office do not accept there is a valid outstanding application or that an application has been considered and refused.

An employer must not employ or continue to employ a person either who they know has been refused an application in the 6 month validity period of a PVN or who has received a Negative PVN.

It seems clear to the writer that it is in this area that most confusion arises for employers. An added complicating factor is when an application is refused but the person has court appeals lodged and outstanding.

The easiest way to explain the process is that whenever a person has a valid application outstanding either with the Home Office or the courts, an employer must at all times have a PVN. An employer obtains as many PVNs for as long as an application remains outstanding. If an employer learns from the employee during the period of a PVN that they have no new valid status, the PVN falls away and they must not continue to employ.

And then for the “snakes & ladders”

When a person obtains new status they will then be able to obtain a “share” code. This is then passed to the employer to conduct the online Right to Work check where they can view on screen the new status of the person. Again, this will either show new time-limited status or permanent status. And yes, for those on the time-limited status the same process will commence when their status expires.

A recent exception to this system is for eVisa holders. Certain individuals do not receive a BRP card but instead their immigration status has always been held digitally. The most common example are individuals who have status under the EU Settlement Scheme. For eVisa holders, when they have an “in-time” application to extend or settle outstanding with the Home Office, they will still be able to provide a “share code” to allow an employer to establish their Right to Work through the online Right to Work check. When their application is outstanding, however, like with the Positive Verification Notices, the check will only confirm a Right to Work for a six month period and the employer will require to continue obtaining a “share code” from the employee and carrying out the check until new status is shown and establishes a Right to Work for a period specific to the employee’s new grant of status.

Final summary

The correct Right to Work checks to apply can be difficult for employers as their exist so many different types of immigration status and so many stages of immigration status. There are a few guiding principles however. Apart from British/Irish nationals and a few very limited exceptions, inspection of manual documents is not permitted to establish a Right to Work. For almost all other nationalities, a Right to Work check has only been properly established when one of the two online checks have been undertaken. Original documents do not establish the Right to Work. All an original document(e.g. a BRP) can do is provide a gateway to perform the online Right to Work check. If employers always have it in mind that is the Home Office checks that are crucial for almost all people subject to immigration control, they should find their way to establish a Right to Work and their “statutory excuse” against any civil penalty.

It is crucial employers have a full understanding of the Right to Work checks to apply and have systems in place to properly conduct the conduct the correct check at the correct time, in the correct manner and to retain the correct evidence. If any employer is unsure of their compliance with the Right to Work system, Anderson Strathern can provide Right to Work training, conduct a mock audit for you and provide specific advice for complex cases.

If you have any concerns or need any guidance on anything mentioned in this article, please get in touch with Mark Templeton.

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