Right to work checks – BRP holders

All employers in the UK have a responsibility to prevent illegal working. This is done by a right to work check before employing a person to establish a statutory excuse against a civil penalty. The two types of right to work checks are an online check and a manual check. The type of check to be conducted depends on the status of the job applicant. An online check is generally required for all individuals only holding digital proof of their immigration status in the UK.

From 6 April onwards right to work checks for holders of a Biometric Residence Card (BRC), a Biometric Residence Permit (BRP) or a Frontier Worker Permit (FWP) must be conducted using the Home Office online service only. Employers will no longer be able to accept physical cards for the purposes of a right to work check. You can find the full guidance here.

Retrospective checks will not have to be conducted for employees that were employed up to and including 5 April 2022. A statutory excuse will be maintained if the initial checks were undertaken in line with the guidance that applied at the time the check was made.

How electronic checks work

Step 1- Access

The potential employee first views their own Home Office right to work record. They can then share their record by providing a ‘share code’ along with their date of birth to the employer. The share code is valid for 30 days from the date of issue and can be used as many times as required within that time period. If the code has expired the potential employee can send a new share code. The share code can either be provided directly or be sent via the service.

The employer can access the service via ‘View a job applicant’s right to work details’ and must access it through the employer part. The statutory excuse cannot be established by viewing the migrant part of the service.

Step 2 – Check

The employer is required to ensure that the photograph shown in the online right to work check shows the potential employee. This must be done in the presence of the individual (in person or via live video link). Additionally, the information provided online needs to relate to the potential employee.

If the online right to work check confirms they have the right to work and not prevented from doing the work in question they can be employed or continue to be employed. If an employer knows or has reasonable cause to believe that the employee does not have the right to work but employs them anyway, they risk being found guilty of a criminal offence.

The service also provides the employer with dates for any follow up checks, where the visa is time limited.  The employer should record these dates and conduct a follow-up check shortly before the immigration status is due to expire.

Step 3 – Evidence

Retaining evidence of the online right to work check is important. The service gives employers the option to save the ‘profile’ page (which is the page including the photo of the individual). The page will also include the date on which the check was conducted. Any evidence should be kept for the duration of the employment and for two years afterwards.

If the potential employee has an outstanding application or does not provide acceptable documents the Employer Checking Service should be used. This service will provide the employer with a Positive Verification Notice (PVN) if the individual is allowed to carry out the type of work in question. The PVN provides a statutory excuse for 6 months from the date stated in the PVN unless the employer knows that the employment is not permitted. It is important to record the dates on the PVN and follow up with the employee before it expires.  The employee should provide their status within the 6 months.  If the applicant does not get a decision on their application the employer must conduct another ECS check.  If the individual does not have the right to work in the UK a Negative Verification Notice (NCN) will be received.   The employer should carefully review the content of the NVN before taking action against the employee.

The employee should be given every opportunity to demonstrate their right to work. Employers cannot insist that employees use the online service and they must not be discriminated against if they  choose to prove their right to work with acceptable documents listed by the Home Office. However, employers should encourage the use of online checks and support their potential employees/employees in doing so (this could be to provide  access to hardware or the internet).

The sanctions of employing someone illegally and not having carried out the prescribed checks include a civil penalty of up to £20,000 per illegal worker, a criminal conviction as well as not being able to sponsor migrants.

Employers should not only check the status of those who appear to be migrants or make assumptions based on their colour, nationality, ethnic or national origins, accent or the length of time they have been resident in the UK. The ‘Code of practice for employers: ‘Avoiding unlawful discrimination while preventing illegal working’ provides practical guidance on how to avoid unlawful discrimination when employing individuals and conducting right to work checks.

An additional change that is being introduced by the Home Office on a phased basis is an aligned BRP and National Insurance Number (NINo) process for individuals aged 16 or over. The NINo will appear in the remarks on the back of the BRP and therefore a separate application to the Department of Work and Pension to obtain a NINo by either the employer or the individual will not be necessary anymore.

Identification Document Validation Technology (IDVT) will be introduced on the 6 April 2022, allowing employers and landlords to check the right to work or rent of British and Irish Citizens who hold a valid passport online, rather than having to complete a physical check of documents. For more on this topic see our article below.

FSP can advise you on all aspects of immigration and will keep you up to date with the latest developments as they are released from the Home Office.

If you require our assistance, please contact our Head of Immigration, [email protected].