New online right to work checks: Who is affected? 

July, 2022 - Shoosmiths LLP

This was introduced on 6 April 2022 and is an essential part of the recruitment process, as this will ensure you have a statutory excuse against a civil penalty and allow you to remain compliant as your duty of sponsors if you currently hold a sponsor licence.


The digital right to work check can only be made by Identity Service Providers (IDSPs) for British and Irish Citizens  as physical proof of documents are expected to finish by 2025.


Right to work checks for non-British and Non-Irish nationals

Standard manual checks cannot be used for right to work checks anymore. The new rules mean that all foreign nationals will need digital checks for those in possession of either a BRC, BRP or Frontier Worker Permit. The individual will provide a share code and their date of birth to you which will allow you to view the employers side of the governments checking website to view the foreign nationals online right to work status. The website will profile which you must retain for two years after their employment has ended and the share code they provide is only valid for 30 days.


Right to work checks for British and Irish nationals

The current method of manually checking the documents for British and Irish nationals will remain in place until 1 October 2022. From this date there will be the second option of using digital checking service for British and Irish nationals. You will have two options from 1 October 2022, however if you are given are passport and choose to do the right to work checks online you will need a current passport and not a expired passport for the online check via the IDSP’s.


Identification Service Providers – IDSP

An IDSP is an approved company responsible for validating the prospective employee documents, and a list of these will be available on the Home Offices website. This is the digital method to check documents for British and Irish nationals. They will only be able to use a current passport and not an expired passport. This is not a mandatory service but an optional service and you can still carry out the manual right to work checks. However, the key caveat is that the IDSP will not provide you with a defence against illegal working and the legal responsibility is still with the employer. Also, the IDSP has a cost which is to be paid by the employer and the cost may differ from each IDSP.


Getting it wrong

Using the IDSP may work for the employer as it has been introduced to make it easier to tackle illegal immigration in the UK. However, you will only have a statutory excuse if the IDSP carries out their check correctly as well as the employer, as if the IDSP does the check incorrectly, then the employer would still be liable for a penalty.


The wide range of sanctions for incorrectly carrying out a right to work check and having illegal workers are:


  • £20,000 per illegal worker
  • Five year prison sentence and unlimited fine
  • Closure of business and a compliance order issued by the court
  • Loss of sponsor licence
  • Seizure of earnings made because of illegal working

 



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