Checking a job applicant’s right to work

Right to work

UK employers and HR departments will be mindful of the need to carry out compliant right to work checks on all prospective employees, before employment commences. In some cases, it would be appropriate to conduct follow-up right to work checks, for instance on individuals with time-limited immigration permission. It is important to have appropriate procedures in place to remind you to conduct the initial check, and follow-up check where applicable.

By doing so, and retaining compliant evidence which captures all the relevant information, UK employers can mitigate their risks and establish a statutory excuse against a civil penalty of up to £10,000 per illegal worker, if it turns out your employee(s) do not have a right to work in the UK.

Manual check

This can be done manually, by physically checking the original document and comparing the details to the individual it belongs to.

Employer Checking Service

Where a prospective or current employee cannot provide any documents or prove they have a right to work, it is possible to use the online Employer Checking Service. This is a free online tool which can help employer’s establish a time-limited statutory excuse.

Online check

Since January 2019, it has been possible for employers to use a different online portal to check for free, whether someone has a right to work, by being provided with a “share code”. This online portal can’t be used for everybody, such as British citizens, in which case a manual or other relevant check ought to be carried out instead.

On the other hand, for some individuals, in the near future, this will be the only method an employer can check an individual’s right to work. For instance, those who have been granted status under the EU Settlement Scheme and those who are granted status under the future Hong Kong BN(O) visa category.

Temporary adjusted checks due to COVID-19

At the height of the current pandemic, the Home Office introduced temporary adjusted checks, which allows employers to rely on scans/ photos of documents and conducting checks via video calls. However, employers who use this method will require to carry out retrospective checks once the temporary adjusted measures come to an end. Both the initial temporary adjust checks and retrospective checks will need to be retained.

Other items to note – UK immigration changes

Besides a summary on the methods of conducting a right to work check, other changes and information you might want to take a note of include:

  • The Tier 2 Sponsor Guidance and Tier 2 Policy Guidance were updated this month to clarify eligibility for the Health and Care visa for key health workers. Even if the fast-track Health and Care visa doesn’t apply, Sponsors should still take this opportunity to check the new guidance to ensure continued compliance with their sponsor obligations.
  • The introduction of the Student and Child Student visas on 5 October 2020. These effectively replace the “Tier 4 (General)” and “Tier 4 (Child)” visa categories respectively. Migrants who hold a Student/ Tier 4 (General) visa may be able to work up to 20 hours per week for an UK employer during term-time, and full-time hours outside term-time. Employers ought to retain additional compliant right to work documents.
  • The increase of the Immigration Health Surcharge on 27 October 2020, from £400 per year to £627 per year, for visa applications submitted on/ after this date. Some migrants such as those under 18, Students, and those applying for a Tier 5 (Youth Mobility Scheme) visa, aka Working holiday visa, will pay a lower increase of £470 per year.
  • From 1 December 2020, UK employers with a Tier 2 (General) sponsor licence or Tier 2 (Intra-company Transfer) sponsor licence will be able to sponsor migrants under its successors, the Skilled Worker route, and the Intra-company Transfer route. These routes can be used to sponsor non-EEA nationals. As EU free movement rights are due to end with the Transition Period at 11pm on 31 December 2020, new EEA nationals to the UK can also be sponsored under the new Skilled Worker or Intra-company Transfer routes after this date.
  • The Migration Advisory Committee recently published their Review of the shortage occupation list: 2020. Over 150 of occupations skilled at RQF Level 3-5 have been added, of which 20 of these are on the “UK-wide” list. It appears that the Home Office has not accepted all of these recommendations in the new rules which take effect on 1 December 2020 for the new points based system.
  • At the end of the Transition Period, the UK will no longer be obliged to give Turkish nationals preferential treatment under the Ankara Agreement. New rules, which largely replicate the current provisions for Turkish nationals already in the UK will take effect at 11pm on 31 December 2020.
  • The new Hong Kong BN(O) visa route will go live on 31 January 2021. This will allow a British National (Overseas) citizen to apply for this visa to live and work in the UK for up to 5-years. For more information on the Hong Kong BN(O) visa, please see here.

Further information

If you have any questions and/or would like tailored advice on any UK immigration matter, please speak to Vincent Chung at: hello@dixcartuk.com or to your usual Dixcart contact.

The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.