Modernising Right to Work checks

• From 28 January 2019, employers are able to conduct right to work checks online
• Home Office publishes an updated Code of Practice on Preventing Illegal Working which determines the amount of any civil penalty for employing an illegal worker
• The Code of Practice sets out the prescribed checks that employers should conduct to avoid a civil penalty in the event of illegal working

Aspire Comment

The Code of Practice on Preventing Illegal Working updates the one issued in May 2014 and reflects the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018 which provides employers with a statutory excuse against a liability for an illegal working civil penalty by conducting an online right to work check using the Home Office online right to work checking service.

The Home Office has stated that it will not be possible to conduct online checks on all employees, or prospective employees, as some individuals will have an immigration status which cannot be checked online at this stage. The right to work checking service sets out what information and/or documentation you will need in order to access the service. If the online service is not available, then a manual check must be done.

Employers who employ staff under a contract of employment, service or apprenticeship, whether expressed or implied and whether oral or in writing must carry out right to work checks in line with Home Office guidance.  Fines may be issued to employers who do not have adequate checking procedures in place or who are knowingly hiring illegal workers, the maximum of which can be £20,000 per worker. We have even seen employers face a significant fine for not putting the date the check was carried out on the documents!