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Preventing illegal working: employers able to rely on online right to work checks from 28 January 2019

14 December 2018

In some circumstances employers will be able to use the Home Office Right to Work Checking Service available on GOV.UK from 28 January 2019 to obtain a statutory excuse against payment of a civil penalty for employing an illegal worker, without having also to check the individual’s physical documents.

The service will only be available for verifying the right to work of some non-EEA/Swiss nationals initially, so will not replace conventional checks.

However, this development provides much-needed certainty for employers on how they will be able to undertake right to work checks in the future for employees/prospective employees who register under the EU Settlement Scheme. This is because the EU Settlement Scheme only provides confirmation of registration to EU citizens in electronic form and, assuming the draft Withdrawal Agreement is adopted, an EEA/Swiss passport or national ID card will no longer be an acceptable document for confirming the right to work after 31 December 2020. From 1 January 2021, employers will be able to rely on the Home Office Right to Work Checking Service to verify the immigration status of EEA/Swiss citizens who have registered under the EU Settlement Scheme.

The new statutory instrument that was laid before Parliament yesterday confirms that employers using the online service must:

  • Check that the service confirms the prospective employee is allowed to undertake the work the employer is offering in the UK
  • Check the prospective employee’s appearance matches the photo in the online service

  • Retain a copy of the online right to work check for at least two years after the employment ends

  • If the person is a student, obtain and retain details of the term and vacation dates of their course.

There are also provisions covering use of the service for repeat checks and the situation where the individual has an application outstanding with the Home Office.

Employers who wish to use the online service will need to gain the consent of the employee/prospective employee.

From the same date, employers will be able to accept short-form birth certificates and adoption certificates for the purpose of right to work checks.

A revised draft Code of Practice on preventing illegal working has also been produced in line with the changes and will come into effect from 28 January 2019.

If you would like further information on these changes, please do not hesitate to contact the immigration team at Lewis Silkin.

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