Right to Work Checks | Immigration Lawyers | Herrington Carmichael

Changes to right to work and rent checks – a move in the right direction

Dec 21, 2021

On 17 December 2021, the Home Office announced further changes to right to work and rent checks which will come into force from 6 April 2022. From 6 April 2022, employers and landlords will no longer be able to accept a physical Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker (FWP) as proof of right to work or rent in the UK. Instead, all checks must be carried out using the Home Office online service.

Employers and landlords do not need to retrospectively check the status of BRC or BRP holders who were employed or who entered into a tenancy agreement up to and including 5 April 2022. Employers and landlords will maintain a statutory excuse against any civil penalty, if the initial checks were undertaken in line with the guidance that applied at the time the check was made.

This move was anticipated when extending the temporary right to work adjustments the Home Office said: “We initiated a review of the availability of specialist technology to support a system of digital right to work checks in the future. The intention is to introduce a new digital solution to include many who are unable to use the Home Office online checking service, including UK and Irish citizens. This will enable checks to continue to be conducted remotely but with enhanced security. Deferring the end date of the adjusted checks to 5 April 2022 ensures the right to work scheme continues to operate in a manner which supports employers, whilst we look to implement a long-term, post-pandemic solution.” This is certainly a step in the right direction as it will protect employers from fraudulent BRC or BRPs, as well as making it easier for checks to be conducted without an employee physically being present however, many businesses will need to update their processes to ensure that they are carrying out checks correctly.

Temporary right to work check

The current temporary checks to end on 5 April 2022, which includes the following process:

  • Checks can be carried out over video calls
  • Job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals
  • Employers can then arrange a video call, ask the worker to hold up the original documents to the camera and check them against the digital copy of the documents. Employers should record the date they made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”
  • If the worker has a current Biometric Residence Permit or has been granted status under the EU Settlement Scheme or the points-based immigration system, employers can use the online right to work checking service while doing the video call and
  • Employers should use the Home Office Employer Checking Service if a prospective or existing employee cannot provide any of the accepted right to work check documents

The importance of right to work checks

A right to work check is essential to an employer to establish a statutory defence against the imposition of a civil penalty for employing an illegal employee, which can be a fine of up to £20,000 per illegal employee, they are found to be employing; criminal penalties can include a jail term of 5 years and an unlimited fine.

When should the checks be done?

Right to work checks should be completed before an employee commences their employment. This can be before an employee starts as part of the onboarding process or on their first day and should be the first thing an employer does.

How can we assist

We keep our eyes on the Home Office guidance, which is regularly updated, and we are keen to keep employers informed of any changes relating to right to work in the UK including covid flexibility.

Have any questions? Please feel free to call us on 01276 686 222 or submit a website enquiry and we shall get in touch.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

Sherry Fitzgerald

Sherry Fitzgerald

Partner, Head of Immigration

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