[vc_row][vc_column][vc_column_text]
Employers can innocently misinterpret Home Office Rules – maybe they have been advised incorrectly or, in extreme situations, ignoring the rules.
Why is this happening and what are the risks?
Since the end of the temporary Right to Work check measures (in force during the Covid-19 pandemic) and the introduction of remote IDVT checks, we’ve noticed an increase in non-compliant Right to Work checking processes in the UK. This mainly centres around an organisation’s desire to check ALL candidates REMOTELY.
They are either being advised badly, have misinterpreted the rules, or at worst are ignoring them because they are deemed unsuitable to their recruitment operations. This article highlights common misconceptions or misinterpretation of the rules by employers which in most cases will leave employers without a ‘statutory excuse’ and exposed to significant fines (up to £60,000 for each offence/illegal worker) and potential loss of employers Sponsors License.
Pre-covid the rules regarding Right to Work checks were pretty simple for employers. Every new starter required a manual face to face check, with the employer holding the original documents in their hand. ONLY the employer could conduct this check and they had to execute three key tasks to conduct manual checks:
-
- OBTAIN the original documents
- CHECK that they are genuine and belong to the holder
- COPY. Make a copy of the documents and the date the check took place.
Whilst the Home Office guidance included a rule that allowed employers to perform the check remotely (if the candidate posted the documents so the employer has them in their hands) via a video call, this was rarely used as the cost, administration and risk of losing them was too great.
When UKVI introduced the digital eVisa’s prior to the UK’s exit from the EU, the options for employers to conduct checks remotely was instantly extended. However, the underlying rules did not really change. Following the same pattern as manual checks for eVisa (Share code) checks:
- OBTAIN the eVisa from the Government website using a valid share code.
- CHECK that the face is the same as the person presenting themselves for work (IMPOSTER CHECK) and that the conditions allow the work in question.
- COPY. Retain a copy of the eVisa and other required evidence and take note of any employment restrictions/conditions or time-limited expiry to the individual’s right to work in the UK.
When the pandemic struck employers were for a short period of time allowed to check ALL candidates remotely via a video call. COVID Adjusted Checks were welcomed by many industries, especially recruitment and umbrella companies, where operationally meeting the candidate was a major ‘inconvenience’. This temporary option came to an end on 30th September 2022.
Since 2022, legislation changes saw the introduction of IDVT (Identity Document Validation Technology) which enables employers to check a candidate’s Right to Work documents (ONLY current British & Irish passports) remotely using a Certified IDSP (Identity Document Service Provider) like Rightcheck. In theory, this was a massive leap forward in terms of remote checking but the elephant in the room is that this pathway is limited to British/Irish citizens which. For most employers this will however only account for a proportion of candidates and their employee base.
Consequently, if employers want to conduct remote checks, they must seek a solution or develop a process that caters for ALL situations; i.e. candidates without British/Irish passports. There remain many other ways that an individual could demonstrate their Right to Work in the UK; for example a British Citizen with a birth certificate, or a foreign national with a passport endorsement – neither can be checked remotely. Furthermore, employers must also ensure their recruitment procedures align to the code of practice for employers: ‘Avoiding unlawful discrimination while preventing illegal working’. This code is to ensure that employers do not unlawfully discriminate contrary to the Equality Act 2010 when carrying out ‘right to work’ checks.
It seems that with the introduction of new rules comes potential misinterpretation and if history repeats itself will unfortunately result in many cases for organisations of non-compliance and fines that could have been avoidable. From observations these are the most common issues and misconceptions we encounter:
- Acceptable use a third party for Right to Work checks
- Acceptable for the candidate to email document images
- No need to conduct, or record imposter checks
- No need to capture supplementary ‘evidence’ (eg. student term dates, or candidate name change)
- No need to log document expiry dates and conduct re-checks
Each of these assumptions are not only wrong, but they will also result in major non-compliance and exposure for the organisations concerned.
Staying Compliant with Right to Work Legislation
To ensure compliance it is crucial to ensure the latest Home Office employer’s guidance is embedded into your Right to Work processes. Our team can provide a free compliance consultation, offering detailed explanations of the updates and implications for your business and recruitment process. We can also showcase Rightcheck – demonstrating how you can stay compliant, whilst saving precious HR/recruitment time and cost.
If you have any questions or concerns about this article, please do not hesitate to contact one of our Right to Work specialists. They are equipped to guide you through the necessary steps to maintain compliance with the latest Home Office regulations.
[/vc_column_text][/vc_column][/vc_row]