Tech Employer Considerations: Right to Work Checks

All UK employers have a responsibility to prevent illegal working. Employers can avoid penalties for employing illegal workers by conducting a simple Right to Work (RTW) check before employing an individual. RTW checks must be conducted on all employees, not only those who are subject to immigration control or are sponsored workers.

If an employer is found to have employed someone without the UK RTW but has demonstrated adherence to guidelines on conducting RTW checks, the employer will have a statutory excuse against liability for a civil penalty. Where illegal working is identified, failure to have completed and retained a valid RTW check could lead to a civil penalty of up to £20,000 per illegal worker. Other potential implications include loss of a UK sponsor licence as well as potential criminal charges. It is therefore important that these RTW checks are completed correctly and that a fool-proof process is in place.

Correctly conducting RTW checks 

Valid RTW checks may be completed in-person with original documents (a manual check), online using the RTW service (a virtual check) or through the services of an identity service provider (IDSP).

A RTW check must be conducted:

• Shortly before the employee’s first day of employment; or
• On the first day of employment before commencing their role; or
• If already employed, prior to the expiry of their current immigration permission.

Manual RTW checks

To determine whether an individual has the RTW, the employer must follow three simple steps:

1. Obtain an acceptable RTW document from the individual. Acceptable documents are listed in List A or List B. The employer must obtain the original document. It is important to note that a manual RTW check cannot be used for employees who have been issued with a Biometrics Residence Permit (BRP), Biometrics Residence Card (BRC) or Frontier Worker Permit (FWP). An online RTW check must be conducted for these employees.
2. Check the individual’s documents in their presence. The individual can be present in person or via live video link. However, you will need to hold the individual’s original documents, unless you are using an IDSP. You will not have a statutory excuse if it is reasonably apparent to a person examining the document briefly but carefully, that it was not genuine.
3. Copy pertinent documents. Make and retain clear copies, sign, and record the date documents were checked. This should be stored securely, electronically or in hard copy, for the duration of employment and for two years after employment ends.

We also recommend that, where an employee has an expiry date attached to their immigration status, the employer tracks and monitors to allow for follow-up checks to be conducted prior to the expiry date.

Online RTW checks

The online service makes RTW checks simpler and more secure. It allows eligible foreign nationals to view their RTW status and share it with current and/or potential employers.

Since 6 April 2022, employers must use this online tool for employees who have been issued with a BRP, BRC or FWP and any digital statute. Steps for online RTW checks include:

1. Initiation. The employee will need to initiate and authorise the process through the Home Office’s online service located at: https://www.gov.uk/prove-right-to-work and provide the required personal information. This will generate a share code, which is shared with the employer.
2. Employer action. Once received, the employer will be directed to the validation webpage which will require the share code, the employee’s details and the company name. This will generate a verification notice.
3. Verification notice. This will show a profile page of the employee, containing a photograph, personal details, their RTW status and details of the check. You must check that the individual on the verification notice is the same person presenting themselves to you. This can be done in person or via live video call. evidencing the individual’s RTW must be saved or printed. You must save or print an image of the check.

What about British or Irish nationals and remote working?

As technology employers adapt to new methods of working, we continue to see varied work patterns. An employee working in a hybrid or remote model is now much more the norm as opposed to the exception. These employees may not want to or be able to come into the office, in advance of their first day, to present their original documentation for an RTW. They also cannot use the online RTW tool that the Home Office has set up.

In these cases, a manual check can be carried out, provided the individual checking holds the original documentation. As an alternative and to prevent the need for sending documentation, employers can use IDSPs for RTW checks. Certified IDSPs can verify a British or Irish national's RTW in the UK and can take the "work" out of RTW checks.

How can Fragomen assist UK employers with RTW verifications?

We are excited to announce the launch of Fragomen WorkRight UK—a certified RTW technology solution designed to help UK employers stay compliant and streamline their employment verification process. This is increasingly important as governments globally are using RTW legislation to protect their resident labour forces and demonstrate rigour around migration issues.

The tool guides the individual and the company through a low touch model ensuring the correct documentation is gathered, screening the documentation, and running background checks, giving companies peace of mind that the RTW check process has been successfully completed.

The UK launch follows on the success of our US I-9 employment verification services and is part of a truly global growing suite of WorkRight solutions. Some of the key features include:

• Mobile or desktop application
• Initiate single or multiple requests
• Identification and facial recognition technology matching the worker to their documentation
• Document authenticity validation
• PEP and sanctions checks
• Mortality check

With such a mobile and hybrid workforce, this should prove a great tool for businesses in the tech sector. The mobile and desktop functionality of the tool allows employers the flexibility to onboard employees remotely without having to handle employees’ original personal documents. Furthermore, the tool allows users to save and maintain accurate workforce records and ensures that notifications are provided when revalidation is required. The process is run for you, and you can use the tool anywhere, at any time.

Need to know more?

Fragomen can fully support your business as you navigate immigration requirements surrounding remote working policies. Our highly experienced team can also discuss WorkRight capabilities and how the tool can be used to support your onboarding processes both in the UK and globally, taking away the stress so that you can focus on other areas of your business growth and product development.

For more information, please Senior Manager Laxmi Limbani at [email protected] and Trainee Solicitor Halil Kaya at [email protected]. For information on requirements for sponsoring workers in hybrid or remote environments, read the first part of our blog series here.

This blog was published on 10 May 2023, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please subscribe to our alerts and follow us on LinkedIn, Twitter, Facebook and Instagram.