Preventing illegal working – the new employer checking service

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All employers in the UK have a duty to prevent illegal working by carrying out right to work checks on prospective employees

New legislation came into effect in January 2019 enabling employers to rely solely on the Home Office’s online checking service to demonstrate that they’ve conducted necessary right to work checks.

This change undoubtedly makes it simpler for employers to conduct right to work checks and to establish a statutory defence against liability. While voluntary, we expect online checks to become increasingly prevalent over time as migrants and employers develop familiarity with the new system.

The importance of right to work checks and the new electronic checking service

Where an employer is found to have employed someone who is prohibited from working (by reason of their immigration status), they will have a statutory excuse against liability and will not receive a civil penalty provided they have correctly conducted right to work checks.

Where an employer has failed to carry out the required checks (or has failed to carry them out correctly), however, they can face a range of sanctions including a civil penalty of up to £20,000 per illegal worker.

It is therefore imperative for employers to conduct the prescribed right to work checks on all new employees before employment commences, even if they claim to be UK nationals, in order to benefit from a statutory excuse. Where an individual’s right to work is time-limited follow-up checks should be conducted shortly before it is due to come to an end.

Free online service

From 28 January 2019 employers could use the Home Office’s free online right to work checking service alone. Until this date employers had to conduct manual checks (as well as any online check) by requesting original physical documents from new employees, which they’ve needed to check and retain copies of in order to establish a statutory excuse. Going forward employers can carry out manual or online checks, as appropriate.

Where the online right to work check is negative (i.e. it shows that the individual does not have the right to work in the UK and/or to do the work in question) the employer will not establish the statutory excuse against civil liability where it employs, or continues to employ, the individual. Where an employer knows or has reasonable cause to believe the individual does not have the right to work and employs them anyway, it risks being found guilty of a criminal offence (currently punishable by imprisonment for up to five years and/or an unlimited fine).

Note that from 28 January 2019 employers were also able to accept short-form birth certificates and adoption certificates from UK nationals, in conjunction with a valid National Insurance number, for the purpose of manual right to work checks.

Using the Home Office online service

Key considerations for employers wishing to use the new online service:

  • It is not possible to conduct an online right to work check in all circumstances – currently this service only supports checks in respect of those who hold: (i) a biometric residence permit or biometric residence card or (ii) status issued under the EU Settlement Scheme. In circumstances where an online check is not possible a manual check should be conducted.
  • Employers must conduct their own check on the gov.uk website to establish the statutory excuse. This check will need to confirm that the prospective employee is permitted to work in the UK and undertake the work in question. Employers cannot rely on the new employee providing information from the migrant part of the checking service, nor can they use any other online portal relating to immigration status to do so. Where they do so the statutory excuse will not apply.
  • Employers cannot mandate online checks. The checking service is voluntary, and employers will need the prospective employee’s consent to conduct a check on them. The candidate will need to complete an online process themselves in order to obtain a ‘share code’, which is valid for 30 days, that they can pass to the employer along with their date of birth so that the employer can undertake the check.
  • When carrying out the online check employers need to satisfy themselves that any photograph on the check is a true likeness of the individual presenting themselves for work.
  • Employers must retain a clear copy of the response provided by the online check. This will need to be securely stored either electronically or in hard copy format for the duration of the employee’s employment and for at least two years after the employment ends.

The future

The introduction of the wider service is undoubtedly a step in the right direction in terms of simplifying and modernising the immigration system.

It will also provide certainty for employers as to how they undertake right to work checks in the future for employees and prospective employees who register under the EU Settlement Scheme. Current arrangements, under which EU citizens can demonstrate their right to work in the UK by producing their national passport or identity card will continue after the UK leaves the European Union and for the entire duration of any implementation period. However, with the introduction of the new online service EU nationals may alternatively choose to rely on online status issued following a successful application to the EU Settlement Scheme for leave to remain, by using the online service to share their right to work with their employer.

Caroline Glacken is a senior associate at Constantine Law

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