Right to work checks – no matter who walks through the door

In the past six months, we have received an increasing number of queries regarding right to work checks which is not surprising, given the numerous changes in this area. However, we have also been involved in a number of corporate transactions where the target business or businesses have not completed right to work checks on any of their staff, often citing "not relevant to our business" as the reasoning.

This approach raises significant concerns. As a result, we have written this short article as a reminder to all employers that they must complete right to work checks on every new starter, before they commence employment - ideally, before day one of employment or at the very least, before their start time (as confirmed in their contract of employment) on day one of their employment.

Failure to perform right to work checks could result in unwanted Home Office scrutiny and serious ramifications, including but not limited to:

• A civil penalty of up to £20,000 per illegal worker.
• A criminal offence, if they knew or had "reasonable cause to believe" that the employee did not have the appropriate right to work.
• Sponsorship licence suspension or revocation (which could result in any current migrants' leave being curtailed and/or future recruitment being detrimentally affected).
• Adverse impact on the ability to obtain future credit.
• Disqualification of company directors.
• Inclusion on the Home Office's civil penalty offender list.
• Bad press, reputational harm and a resulting hit on profits. 

It is therefore vital for businesses to ensure they are completing right to work checks before employment commences and that those checks are completed correctly.

Current guidance

Employers conducting right to work checks should follow the latest guidance which was updated on 6 April 2022 and can be found here. There is also an employer's right to work checklist which acts as a helpful aid memoire and can be found here. For details of the key changes to the guidance from 6 April 2022, please see our March update.

In summary, the key changes were as follows:

• Employers are no longer able to accept physical biometric residence permits/cards and frontier worker permits for the purposes of right to work. Instead, these permit/card holders will only be able to evidence their right to work using the Home Office online right to work service.

• Employers do not have to use a certified Identity Service Provider ("IDSP") to conduct right to work checks on British and/or Irish nationals – this gives employers flexibility given that no IDSPs have been approved and certified by the Government as yet. However, we recommend that businesses only use a certified IDSP from the Government's approved list (once available) as they will remain liable for a civil penalty if the right to work check is not carried out properly by a third-party provider.

• The end date for the temporary adjusted right to work checks has been deferred to 30 September 2022.

If you have any questions about conducting right to work checks or have general business immigration queries, please do get in contact with Gemma Robinson or Laura Coombs.