Since January 2019, employers have been able, in certain circumstances, to rely entirely on the Home Office’s online employer checking service to conduct right to work checks and avoid allegations of non-compliance.
The checking service does not, however, apply in all cases and it will be important for employers, HR and those responsible for performing an organisation’s right to work checks to understand how to make use of the service while avoiding Home Office penalties.
What is the Employer Checking Service?
UK employers operate under a duty to prevent illegal working by carrying out right to work checks on all prospective employees and those workers with time-limited permission to work.
Prior to the rule change in January 2019, employers had to conduct checks manually by requesting original documents and retaining copies of these, as well as performing online checks where required.
The Employer Checking Service is a free online service from the Home Office designed to enable employers to meet their duty to conduct right to work checks on employees.
Under the new Code of Practice, employers can now use the online checking service as the single method of verifying an employee’s permission to work where the individual has:
- A biometric residence permit or biometric residence card or
- Settled status under the EU Settlement Scheme.
If an online check is not possible, the employer should continue to perform manual document checks.
You should also use the online service to check an employee’s immigration status in any of the following circumstances:
- The employee cannot show you their documents because of an outstanding appeal, review or application with the Home Office
- The employee has a Certificate of Application less than six months old
- The employee has an Application Registration Card
- The employee is a Commonwealth citizen who started living in the UK prior to 1988.
Please note, in the event that you are requesting a check in circumstances where the prospective or existing employee has a Certificate of Application less than six months old, or an Application Registration Card, you will need to see the original version of the document.
Relying on a defence
Under the UK’s prevention of illegal working regulations, where an employer is found to have employed someone who, by reason of their immigration status, is prohibited from working in the UK or from undertaking the work in question, they may face a civil penalty fine of up to £20,000 per illegal worker.
However, where an employer is found to have employed someone who is working illegally, yet they can show they carried out the prescribed right to work checks correctly, they may be able to rely on a statutory excuse to challenge or reduce the fine.
It is critical therefore that all personnel performing right to work checks are aware of what they must do to confirm the right to work of both prospective employees and existing employees whose right to work in the UK is time-limited.
When should I use the Employer Checking Service?
It is currently optional to use the employer checking service. Indeed, in some cases, it will not yet be possible to use the online service and a manual check will still need to be performed.
Employers can only use the online system where the individual has provided their permission and obtained a ‘share code’ by completing their own online application. The share code is valid for 30 days. Importantly, the organisation has to perform the online check being relied on to discharge the right to work duty; you cannot rely on information in the migrant part of the checking service.
How do I use the Employer Checking Service?
To carry out the check, you will also need to provide the following information:
- Their full name and date of birth
- Their home address
- Their nationality
- Their job title and hours worked per week
- Any Home Office reference number or case ID.
In addition, you will need to provide your business name, business type and contact information. You will be asked to enter all these details into a simple online form and will receive email confirmation of everything you have entered. The Home Office will typically respond within approximately five working days.
Employers must retain a clear copy of the response provided by the online Employer Checking Service. Under the right to work record-keeping duties, you must retain and store this document (either in print or online) for up to two years after the individual leaves your employment.
Please note, where a right to work check proves to be negative, in other words, it reveals that the employee in question is not entitled to work in the UK or undertake the work in question, you will not be able to rely on the statutory defence against a civil penalty if you employ, or continue to employ, that individual.
Moreover, where an employer knows or has reasonable cause to believe the individual does not have the right to work and employs them anyway, they risk criminal prosecution punishable by imprisonment for up to 5 years and/or an unlimited fine.
What will I be asked by the Employer Checking Service?
You will be asked a number of questions when using the online tool, including the following:
- Does the employee or prospective employee have a passport from the UK, the European Economic Area (EEA) or Switzerland, or other immigration documents from the Home Office that demonstrate a right to work?
- Does this person already work for you? And if so, when did they start working for you?
- Does this person have any one of the following?
- An ongoing application or appeal for leave to remain in the UK
- An application for no time limit to be added to a new passport by someone who already has indefinite leave to enter or remain in the UK
- An application for transferring a current visa into a new passport / Biometric Residence Permit (BRP)
- An application for a replacement BRP
- A Certificate of Application (COA) issued to a family member of an EEA national stating that the holder is allowed to work. The COA must be less than six months old
- An Application Registration Card (ARC) for an asylum seeker stating that the holder is allowed to work
- None of the above.
- Has this person been in the UK since before 1988?
- Where the employee or prospective employee is a family member of an EEA national and has a COA less than six months old stating they are allowed to work, or where they are an asylum seeker and hold an ARC stating they are allowed to work, have you seen the original of this document?
- Where the employee or prospective employee holds none of the documents above, has this person made an application for, or do they qualify for, settlement protection? A person can apply to settle in the UK, known as indefinite leave to remain, if they have got a residence card as a refugee or a person with humanitarian protection.
Depending on the answers given, the online tool will determine whether or not you can request an online check from the Home Office. You will then be prompted to enter the relevant details of the employee, together with their job role and details of your business.
In circumstances where the employee is from the UK, the EEA or Switzerland, or has immigration documents from the Home Office that demonstrate a right to work, then you will not be able to request a right to work check through the Employer Checking Service. However, you will still need to carry out a manual check to ensure that the employee’s documents are valid and keep copies of those documents.
Right to Work support for employers
Changes in the UK rules following the Brexit referendum – notably the introduction of the EU settlement scheme and imminent immigration reform scheduled for January 2021 – are creating greater compliance risks for employers when checking individuals’ right to work. Opening up the online checking service was intended to make it easier and quicker for employers to carry out the necessary checks, but it also presents risks where employers erroneously rely on the online system or fail to maintain standards with their manual checks.
DavidsonMorris specialise in all aspects of the prevention of illegal working legislation and immigration compliance.
We work with employers to provide consultancy guidance on Right to Work compliance, including auditing and reviewing processes, systems and documents, and delivering training to HR and managers responsible for conducting the checks and maintaining personnel records.
Where you are facing a civil penalty, we can help. Challenging a civil penalty is a complex process. We can guide you from the outset, establishing if you have grounds to appeal and building the case to challenge the Home Office’s decision.