The government has announced changes to modernise the "right to work" checks needed to avoid employing illegal workers in the UK. The changes will take effect from 28 January 2019.
The changes to take place on 28 January will mean that employers can use an online service to conduct the necessary right to work checks on migrants, rather than viewing and copying original documents. This is welcome news for employers, many of whom have expressed frustration with the current document-heavy process.
Employers of non-EEA nationals who hold biometric residence permits (BRPs) or biometric residence cards and EEA nationals with settled status or pre-settled status under the EU Settlement Scheme can use the service. UK nationals, EEA nationals who do not have settled status under the EU Settlement Scheme, and non-EEA nationals who have a visa in their passport rather than a BRP will continue to prove their right to work by showing original documents, such as their passport.
The new online right to work check system will work on the basis that a prospective or existing employee will view their own immigration record, and then share this with the relevant person within your organisation, i.e. an HR manager. The relevant person will then receive notification that they have an immigration record to view. By viewing the record and conducting a number of checks, a statutory excuse against a civil penalty will be established.
The following checks must be completed when using the online service:
- the check must confirm the employee is allowed to work in the UK and perform the work in question; and
- the photograph on the online right to work check must be of the employee.
A copy of the online check must be taken and retained for at least two years after the employment ends.
Additionally, requirements for Tier 4 student visa holders will continue, i.e. an employer must obtain and retain confirmation of term and vacation dates.
The new system will be optional to use. Employers and individuals can choose whether to use the online system or the existing document-based checks.
A revised draft Code of practice on preventing illegal working accompanied the statutory order introducing the change. The Code can be found here: https://www.gov.uk/government/publications/illegal-working-penalties-codes-of-practice-for-employers-2018.
The website for prospective and existing employees to check their right to work and share details with you is https://www.gov.uk/prove-right-to-work.
Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.