Under new legislation, aimed at providing certainty and simplicity for employers when carrying out immigration right to work checks, from 28 January 2019, employers are able to solely rely on a voluntary online Right to Work Checking Service to demonstrate compliance with illegal working legislation.
Individuals will be able to authorise their current or prospective employer to conduct the check and will be able to view the information to be shared.
The online checking service can be used by non-EEA nationals who hold biometric residence permits or biometric residence cards and EEA nationals (i.e. EU citizens and citizens of Iceland, Liechtenstein and Norway) who have been granted immigration status under the EU Settlement Scheme. EU nationals who have not been granted status under the EU Settlement Scheme will need to demonstrate their right to work using the appropriate documents after 2020.
Please note that the current ‘right to work’ checks for EEA nationals (e.g. a passport and/or EU or EEA national ID card) continue to apply until the end of 2020. There will be no change to the rights and status of EU or EEA citizens living in the UK, or requirement for EU or EEA citizens to demonstrate settled status under the EU Settlement Scheme until 2021.
In summary, an employer using the online service will be excused from a civil penalty where:
- The online check confirms that the employee is allowed to work in the UK and perform the work in question.
- It satisfies itself that any photograph on the online right to work check is of the employee.
- It retains a copy of the online check for at least two years after the employment ends.
- It obtains and retains details of the term and vacation dates of the person's course of study, if they are a student.
Employers will be able to request either the online check or the existing document-based check.
- From 28 January 2019, when conducting right to work checks, employers can also accept short-form birth and adoption certificates (which, unlike long-form birth or adoption certificates, can be obtained free of charge) together with a National Insurance number. This change will make it easier for British citizens who do not hold a passport to demonstrate their right to work.
As always, if you have a legal query please get in touch with the FSB Legal Helpline on 0345 0727727 and we'll be happy to assist you.