How to check right to work status post-Brexit
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With the latest changes to immigration, it’s now more important than ever to stay on top of the latest employment law news and understand what to do to check new employees’ right to work.

It is really important to check that every person you employ has the legal right to work in the UK. The penalties for employing someone who is not eligible are severe – you could even face a criminal conviction.

This guide will help you get to grips with the new right to work system so that your business can stay compliant with the law.

If you need any additional guidance or support, you can use our HR software to save you more time, or reach out to our friendly, expert team. Just get in touch on 0333 014 3888 or email help@citrushr.com.

Key changes to keep in mind

Prior to 1 July 2021, citizens of the European Economic Area (EEA) and Switzerland could use their passports or national ID cards as evidence of their right to work in the UK. This is no longer the case for new employees.

From 1 July 2021, EEA citizens and their family members need to evidence their immigration status in the UK in the same way as other foreign nationals.

EEA nationals who have applied to the settlement scheme, will normally use a digital share code to evidence their right to work in the UK.

The deadline for people to apply for the EU Settlement Scheme was June 30 2021 however some late applications are accepted in exceptional circumstances.

Remember that these changes do not apply to Irish nationals who can still use their passports to demonstrate their right to work.

Also, remember that you should not perform retrospective checks on EEA nationals already in your existing team prior to 1 July 2021. This could be discriminatory. The right to work checks you did at the start of their employment, providing they followed the rules at the time, will be sufficient.

Covid related changes

Right to work checks as we know them under the relaxed Covid-19 rules, complete with scanned copies of evidence and over a video call, are continuing until 5th April 2022. There is no requirement to recheck these documents.

How to check right to work

It is important to complete the right to work checks before someone has started work with you.

Online checks

The Government is committed to moving right to work checks online through their checking service. For the time being, you should be able to check the following types of immigration status online:

  • Settled or pre-settled status under EU Settlement scheme
  • Status under the points-based immigration system
  • A biometric residence permit or card
  • A British National Overseas visa
  • A Frontier Workers permit

Your prospective hire will need to send you their date of birth and share code, which lets you access their work record and right to work status. Alternatively, they can share their status with you through the service via email.

Then you will need to verify it, by checking that the photograph on the work record is of the person in front of you. You can do this in-person or via video call.

Then it’s important that you make note of the date you’re checking right to work before printing the person’s profile or saving it as a PDF or HTML. You should store this securely – which you can do easily in our software – for the duration of employment and for two years afterwards. The file must then be securely destroyed.

Manual checks

In many cases, prospective hires will still have physical documents for you to check. This is the process you must follow to stay in-line with the law.

The first step of the manual process is to assess which form of identification you are being presented with. The Home Office has two lists of verified documents you can use – List A and List B. Examples of List A evidence includes UK passports or birth certificates or the indefinite leave to remain.

If you are given List B documents, these will only evidence a temporary right to work, so it’s important to make note of the date that the right to work ends.

Once you know which document you’re checking, you can move on to the next step.

Now you have to check the document’s validity, which is usually done in-person. For those of us that have fully bought into remote working, this can be tricky. You don’t want to travel for hours to meet a candidate on the other side of the country for a simple right to work check!

You can conduct checks over a video call, and receive scanned copies or photographs via email or mobile apps that you then verify during your call. This process was introduced as an alternative to in-person manual checks in March 2020 as a response to the pandemic, and you can continue to do this until at least 5th April 2022.

Once you’ve got the logistics of the check down, you have to be sure to check the documents fully.

You probably aren’t a trained fraud expert, but you do need to take reasonable steps to make sure that they aren’t fake. You can find these on the government’s website.

Next it’s important to take note of any restrictions to their right to work – for example, limited hours.

Then you can move on to the final step, which is where you make a note of the date you’re checking the documents before copying them. We recommend using wording like: ‘I confirm this document is in date and appears to be genuine’. You also need to remember to add your name and to write that the document was checked on …….

Be sure to keep your copy in a secure place for the duration of your employee’s time with you. We recommend scanning and uploading your copy to a safe place, like our HR system.

You have to keep the document for two years after your employee leaves your company, then you can destroy it.

What if I can’t verify right to work with the documents given to me?

If in doubt, contact an HR expert or the Home Office’s employer enquiry helpline on 0300 790 6268. It’s always better to be safe than sorry in the case of breaching immigration law. As we mentioned, the punishments can be severe.

You can reach out to our team of HR experts on 0333 014 3888 or through email at help@citrushr.com.

The content of this blog is for general information only. Please don’t rely on it as legal or other professional advice as that is not what we intend. You can find more detail on this in our Terms of Website Use. If you require professional advice, please get in touch.

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