How do I conduct a Right to Work check from 6 April 2022?

The Home Office has announced that from 6 April 2022, employers must conduct an online RTW check only using the Home Office’s online system in order to carry out a valid Right to Work (RTW) check on individuals who hold a Biometric Residence Permit (BRP), Biometric Residence Card (BRC) or Frontier Work Permit (FWP).

RTW checks must be carried out on all employees in the UK. If you employ an individual who does not have the RTW you may be liable for a civil penalty. Currently, RTW checks can be carried out in one of three ways:

1. Manual RTW check – You will need to obtain the individual’s original RTW documents (as specified in Annex A of the RTW guidance), check the document in the presence of the holder and make a copy.
2. Online RTW check – You will only be able to conduct an online RTW check for certain individuals who have an immigration status that can be checked online. This includes those who hold a BRP/BRC, status under the EU Settlement Scheme, a British National Overseas visa, or a Frontier Workers permit (FWP). The individual will need to log on to the employees’ side of the Home Office’s online system in order to generate a ‘share code’. You, the employer, will need to log on to the employers’ side of the Home Office system using the share code provided by the employee and then you will be able to view the individual’s immigration status. We outline the steps required to conduct a valid online RTW check.
3. Temporary COVID-19 RTW check- The Home Office has recognised the difficulties employers have faced in carrying out RTW checks during the COVID-19 pandemic and have therefore introduced adjusted measures from 30 March 2020. Under the COVID-19 measures, RTW checks can be conducted by viewing scanned copies (rather than originals) of the necessary identity documents which can be sent by the individual via email or through an app. You are also able to check the documents over a video call with the individual (rather than in-person).

What Will Change?

Currently, individuals can choose whether they want to demonstrate their RTW through a manual or online check, and as an employer, you cannot force a current or prospective employee to carry out one check over the other. However, from 6 April 2022, for individuals who hold a BRP, BRC or a FWP, an online RTW will be the only valid RTW check accepted by the Home Office.

The COVID-19 adjusted RTW checks are due to end on 6 April 2022. After this date, they will no longer be accepted by the Home Office as a valid RTW check. The “end date” for the COVID-19 measures in relation to RTW checks has been extended several times since 2020, so it remains to be seen if the Home Office announce any further extensions to the adjusted RTW check system.

Do I have to carry out a retrospective online RTW check for current employees?

If you have conducted a valid manual (or temporary COVID-19) RTW check on an individual who holds a BRP, BRC or FWP prior to 6 April 2022, you do not have to carry out a retrospective online RTW check. You will maintain a statutory excuse against a civil penalty if it later transpires that the individual did not have the RTW, and therefore you were unknowingly employing an illegal worker.

However, should you choose to conduct a retrospective check and you find that your employee does not have the RTW, you must act quickly in order to avoid a civil penalty for employing an illegal worker. The appropriate action to take may be dictated by the individual’s wider immigration circumstances, such as if they currently have an outstanding immigration application with the Home Office. If this is the case, you will need to use a different a Home Office online system (Employer Checking Service) to carry out a temporary RTW check.

As a result of these changes, you may need to review internal RTW check procedures to ensure the appropriate RTW checks have been, and will continue to be, carried out and if an issue arises, to act quickly and appropriately in order to maintain a statutory excuse.

How Gherson can assist

Gherson’s corporate immigration team has extensive experience in advising on Right to Work Checks and other employer compliance matters. If you have any queries relating to the blogs published or are interested in talking to us about your specific circumstances, please do not hesitate to contact us for advice, send us an e-mail, or alternatively, follow us on Twitter, Facebook, or LinkedIn to stay-up-to-date.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please do not hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

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