NAVIGATING THE CURRENT RIGHT-TO-WORK REGIME Key considerations for businesses

Introduction

Immigration law has undergone significant changes over the past decade, driven by the government’s efforts to bring down net migration. While these changes primarily impact businesses that sponsor overseas workers, it is crucial for all UK employers to understand and comply with the law on preventing illegal working.

Failure to adhere to Home Office protocols can expose businesses to civil and criminal penalties, and dealing with an unexpected right to work issue can be extremely disruptive. In this article, we provide a summary of the current right to work regime, focusing on practical aspects that businesses often overlook and important recent changes that could determine whether business risk is adequately managed.

Challenges For Businesses

While companies that regularly hire workers from outside the European Economic Area (EEA) are more likely to be familiar with the ever-changing policies and adapt their HR systems accordingly, businesses that infrequently hire foreign workers often struggle to navigate the complex Home Office requirements. The Home Office policy, which has recently undergone multiple changes, now requires different processes for different types of new hires.

Understanding The Current Regime

Historically, the right to work check involved verifying candidates’ original documents before they started work and retaining copies in the HR file. Many employers continue to follow this process, unaware that it is no longer relevant for certain categories of workers. If an incorrect process is followed and it later transpires that the business has been employing an illegal worker, because the worker presented a forged biometric residence permit, for example, the business will not be able to rely on the ‘manual’ check they conducted for defence against potential penalty. The defence is only available where the business conducted the right to work check in line with the requirements as they were at the time of the check.

The right to work check must continue to be carried out prior to the commencement of employment, as previously required. However, the key questions under the current regime that will determine what process you have to follow when conducting the check is the nationality of the worker and the type of evidence they are looking to use to demonstrate their right to work.

British And Irish Nationals

For British or Irish nationals, the standard practice is to check their original current or expired passport (alternative options exist where they do not have a passport) in their presence and retain a copy of the document, ensuring the date of the check is documented. While the check should ideally be conducted in person, it is acceptable for candidates to be present via a video link if they have sent their original passport to you in advance.

Additionally, since April 6th 2022, employers have the option to rely on certified Identity Service Providers (IDSPs) to complete the digital identity verification component of right to work checks. Employers can obtain an identity verification check document from an IDSP and review it to ensure consistency with the person presenting themselves for work.

Foreign Workers

For nationals of other countries, their plastic biometric residence permits can no longer serve as proof of the right to work. However, these permits can be used to generate a “Share Code” that enables employers to verify the right to work through the Home Office’s online service. Employers must run an online check on the Home Office website using the “Share Code” in the presence of the candidate (physically or via a video link). The resulting immigration record will display the candidate’s photograph, right to work information, and expiration date, which should be retained as evidence in the worker’s HR file.

A similar process must be followed for workers from the EEA who hold a digital immigration status and can usually only evidence their right to work via a ‘Share Code’.

If a foreign worker has a valid work visa in their current passport (which is now increasingly rare other than in respect of the short term/temporary vignette stamp given for the purposes of entry clearance to the UK), the right to work check can be conducted by reviewing the original visa in the presence of the candidate and retaining copies of both the visa and the passport until the visa’s expiry date.

Additional Considerations

While the above is not intended to be a comprehensive guide, it does cover the vast majority of cases.

There will, of course, be scenarios not covered by the above processes. For instance, candidates whose visas have expired while awaiting an extension decision may still have the right to work, which can be verified through the Home Office’s Employer Checking Service.

Conclusion

By conducting right to work checks in line with the Home Office policy, businesses can benefit from a statutory excuse that protects them against liability in the event of employees being found to be working illegally and potentially avoid significant business disruption further down the line. It is essential for businesses, regardless of their frequency of hiring foreign workers, to stay informed about the current right to work regime and implement the appropriate procedures as part of their hiring process to ensure compliance.

Alexei Zuyev is a Senior Associate in the Immigration Team at DMH Stallard. His expertise spans a wide range of immigration matters, including successful sponsor license applications, work visa applications, family-related applications, indefinite leave to remain and citizenship applications. With a proven track record of overturning visa refusals and travel bans, Alexei is well-versed in navigating complex and challenging cases.

Alexei also advises corporate clients on sponsorship compliance obligations and right to work checks, providing guidance on best practices for record-keeping and reporting.

For further advice on sponsorship of overseas workers or any other Immigration issues, please contact a member of the DMH Stallard Immigration team by emailing enquiries@dmhstallard.com

Following a 36-year career as a corporate and commercial banker, latterly leading NatWest’s real estate finance team in London and the South East, responsible for over £2bn of lending into the sector. John Walsham, Business Development Consultant brings his insight and expertise to Kreston Reeves’ clients