Are you fulfilling your legal obligations when recruiting?
Sultana Ali, Head of Business Immigration
On 1 October 2022 the requirements surrounding the Right to Work (RTW) checks were updated. During Covid 19, temporary measures were brought in to conduct RTW checks. This has now been updated and must be done in person or by appointing an Identification Service Provider.
The importance of conducting the correct RTW checks cannot be underestimated. Earlier this year two Bolton businesses were heavily fined for use of illegal workers following an unannounced visit by the Home Office. Failure to carry out the correct RTW checks can cost the employer a civil penalty of up to £20,000 per illegal worker, and in serious cases a criminal conviction carrying a prison sentence of up to five years and an unlimited fine.
Employers must conduct a RTW check on every candidate to ensure the individual is legally allowed to work for the employer and should not discriminate against anyone when conducting the checks.
To establish a statutory excuse against a civil penalty, employers must do one of the following before the employee commences employment:
1. Manual RTW check:
Complete a four-step process:
Step 1: Obtain
Employers must obtain original documents
Step 2: Check:
Employers must check documents are genuine and belong to the prospective/existing employee.
Step 3: Copy
Employers will need to make clear copies of original documents and retain copies either electronically or in hard copy format and record the date the check was carried out.
Step 4: Retain
Employers are required to retain copies for the duration of the individual’s employment, plus a further two years after the employee leaves their employment.
2. Online RTW check:
The employer can conduct an online check using the Employer Checking Service. This is a free online service to verify a prospective or existing employees’ permission to work. The online checking service works for those candidates who have:
- A Biometric Residence Permit
- Settled Status or Pre-Settled Status
- Frontier Worker Permit Holders or those issued with eVisas.
The employer must meet with their new employee on their first day to verify the uploaded photo is indeed the person attending work. The employer should download and save a copy of the online check which includes the PDF document and the time and date it was recorded.
3. RTW check using Identity Verification Technology (IDVT) for British and Irish Nationals:
Employers must physically check new employees’ RTW documents – this can be completed either:
In person – meeting with the employee, ensuring that documents they are presenting are original, untampered and belong to them. Employers should take a signed and dated copy of the document/s and retain these securely.
Or By appointing an Identification Service Provider (IDSP) – The IDSP will use IDVT to check the validity of passports of British/Irish nationals on behalf of employers.
If you are concerned that your business may not be complying with the correct RTW procedures, please contact our specialist team on 0239 266 0261 or visit biscoes-law.co.uk
