News added on 04.01.2019


Migrant workers

Online right to work checks

New legislation will come into force on 28 January 2019 enabling you to rely on the Home Office checking service to demonstrate you’ve conducted the necessary right to work checks on new employees.

The maximum civil penalty for employing illegal workers as a result of negligent recruitment and employment practices is £20,000 per illegal worker, so it’s essential that you conduct the prescribed right to work checks on all new employees before they start working for you, even if they claim to be UK nationals. If you do conduct the prescribed right to work checks, you’ll have a statutory excuse to avoid payment of the civil penalty. The Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018 will take effect on 28 January 2019. From that date, you can use the Home Office’s free online right to work checking service to establish the statutory excuse against liability for the civil penalty. Until now, you’ve still had to request physical documents from new employees alongside using the checking service.

The checking service makes it simpler for you to conduct right to work checks. However, you must conduct your own check using the employer page on GOV.UK entitled “View a job applicant’s right to work details”; you can’t rely on the new employee providing information from the migrant part of the checking service and neither can you use any other online portal relating to immigration status as these will not provide you with the statutory excuse. The checking service is voluntary, and you’ll need the new employee’s consent to conduct a check on them. They will provide you with a share code and their date of birth if they give you permission to check their details. When carrying out the online check, you must satisfy yourself that any photograph on the check is of the individual presenting themselves for work. You must then retain a clear copy of the response provided by the online check, storing that response securely either electronically or in hard copy format for the duration of the employee’s employment and for two years afterwards.

The response provided by the online check will confirm whether the new employee is allowed to work in the UK and carry out the work in question, and the period for which they’re permitted to carry out the work, i.e. whether they only have a time-limited right to work in the UK and hence whether you only have a time-limited statutory excuse. Where the employee does only have a time-limited right to work in the UK, you’ll still need to conduct the relevant follow-up checks to retain the statutory excuse.

The checking service can only be used for either non-EEA nationals who hold biometric residence permits/cards or EEA nationals who’ve been granted settled status under the new EU Settlement Scheme, so it doesn’t replace the conventional physical document checks. You’ll need to use conventional checks for all other new employees.

Finally, the Order also provides that UK nationals can, from 28 January 2019, evidence their right to work using a short-form birth or adoption certificate, which they can obtain for free, instead of providing the full version, making it simpler for those UK nationals who don’t have a British passport.

From 28 January 2019, you can rely on the online right to work checking service in certain cases to show compliance with illegal working legislation, without the need to also check a new employee’s physical documents. However, make sure you conduct your own check using the correct employer page on GOV.UK and you’ll first need the employee’s consent.

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