Right To Work Checks

Published date16 March 2022
Subject MatterImmigration, General Immigration
Law FirmLatitude Law
AuthorMs Gemma Tracey (née Wylie) and Mohammed Hafejee

The Home Office has recently published information about civil penalties that were imposed between 1 July to 30 September 2021. Civil penalties are imposed on organisations which have employed an individual who does not have permission to work. If found to be employing workers who do not have the right to work, employers can face a penalty of up to '20,000 per worker. During the 3-month period that the Home Office's guidance covers, 8 civil penalties were imposed on employers in the North West of England.

The Home Office's guidance on right to work checks is extensive; it's currently 72 pages long (!), and Brexit and COVID have resulted in significant changes over the last couple of years. Just last week I received an enquiry from an EU national who was undertaking employment in the UK. I quickly came to realise that he had no permission to work, and he couldn't have passed a right to work check if one had been completed correctly by the employer.

It's very important that employers understand how to conduct right to work checks. If a right to work check is undertaken correctly, employers are likely to have a statutory excuse against liability for a civil penalty. If not undertaken properly, a civil penalty may be imposed.

How can I conduct a right to work check?

Migrant workers can generate a share code which will give an employer online confirmation of their immigration status. Alternatively, specified documents can be checked (although see below for further changes that will take effect from 6 April 2022).

Usually, original documents should be reviewed in the presence of the worker, but due to COVID, the Home Office recognised that checks can be carried out via a video call and that job applicants / workers can electronically provide documents to their employer. This temporary adjustment will end on 30 September 2022; from this date, original documents will need to be checked in the presence of the applicant / worker. Retrospective checks on those who relied on the COVID-19 adjustment will not be necessary.

What if an applicant / worker cannot provide the acceptable documents?

You can use the Employer Checking Service to ask the Home Office to check an employee's / potential employee's immigration status.

Does an EEA passport mean an individual can work?

No. EU free movement into the UK ended at 11pm on 31 December 2020. Any EEA workers arriving after this date - and who hadn't lived here previously - was admitted under UK domestic law, meaning if no...

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