Happy New Tax Year!! Do You Know Your IDSPs From Your IDVTs

On 6th April 2022 new measures were introduced to UK immigration law relating to the right to work.

What Is The Right To Work And How Can It Be Proven?

The UK obliges employers to carry out manual or online right to work checks to provide a statutory excuseagainst unlawful employment. However, on 6th April 2022 the new rules introduced a right to work check via IDVT or “Identity Document Validation Technology” through the services of a IDSP (a.k.a. Identity Service Providers).

The UK Government has confirmed that right to work checks on holders of the following physical:

• Biometric Residence Permits
• Frontier Worker Permits and
• Biometric Residence Cards

can only be done online. This will be the case even if the particular document is still valid.

What Are The Consequences For Failing To Comply With The Statutory Excuse?

Lawyers should be advising their clients if they do not have a legally valid statutory excuse and fail to comply with the criteria laid down then such behaviour will constitute the commission of criminal and civil offences. Contingent on the seriousness of the circumstance of the case, a person convicted of the criminal offence of knowingly employing a person without the right to work in the jurisdiction might potentially face a custodial sentence not exceeding five years and an unlimited fine.

Whereas if on the evidence before the authorities a person is found liable for the commission of a civil offence they may be liable to a fine not exceeding the amount of £20,000. An example of a lower-level civil offence under this category would be where an employer overlooked carrying out the required due diligence by failing to check if a document has expired.

Harsher penalties may apply for example where an employer:

• required staff.
• built a friendly personal relationship with a candidate.
• was aware that a particular employee lacked the right to work; and
• taking all the above information into account and regardless of it decided to employ the specific person.

Employers Don’t Have To Carry Out Cumbersome Right To Work Checks Against Everyone Do They, Right?

Regardless of whether a prospective employee is a native British citizen or has arrived from another overseas country it makes no odds. The employer will still be legally obliged to conduct right to work checks against every member of staff.

Is An Employer Exempt If They Are Employing A Friend Of The Family?

The UK Government have made it clear that employers are legally obliged to carry out right to work checks on all prospective employees. It does not matter if the person is a friend of the family. In this regard Julia Moktadir from Stone King clarified that the only two matters of importance to the UK Government are that affected individuals have the right to work in the jurisdiction and have the required valid documents available for inspection.

How Can Employers Comply?

Lawyers need to be advising employer clients:

• that physical Biometric Permits and Cards cannot be authenticated manually as they are no longer being accepted as evidence of the right to work. Such evidence will need to be uploaded online
• to visit the Home Office website and conduct a right to work check by inputting the relevant person’s details into the section entitled ‘checker’
• to ensure their Human Resource departments have systems in place that are fit-for-purpose and
• to make sure both the records and record keeping processes are up-to-date

ASSESSING FIRMS

#BatesWells #KingsleyNapleyLLP #LauraDevineImmigration #MagrathSheldrickLLP #MichcondeReyaLLP #PwCLLP #CarterThomasSolicitors #CharlesRussellSpeechleysLLP #DeloitteLegal #LewisSilkin #PenningtonsManchesCooper #BakerMckenzie

THE ARTICLE WAS WRITTEN USING THE FOLLOWING SOURCES 

[1] UK Government – Penalties for employing illegal workers - Penalties for employing illegal workers - GOV.UK (www.gov.uk)

[2] Home Office – Home Office immigration and nationality fees – 6th April 2022 - Home Office immigration and nationality fees: 6 April 2022 - GOV.UK (www.gov.uk)

[3] Cundy, Lucy – Richmond Chambers - Changes to Right to Work Checks from 6 April 2022 - Changes to Right to Work Checks from 6 April 2022 - Richmond Chambers (immigrationbarrister.co.uk)

[4] Devine, Laura – Right-work checks set to change from 6 April 2022 - Right-to-work checks changes from 6 April 2022 | Laura Devine Immigration

[5] McKinney, C.J. – Changes to right to work checks from – 6 April 2022 – 20 January 2022 - Changes to right to work checks from 6 April 2022 - Free Movement

[6] UK Government – Statement of Changes in Immigration Rules – 29 March 2022 - HC 1220 – STATEMENT OF CHANGES IN IMMIGRATION RULES (publishing.service.gov.uk)

[7] Section 3(2) of the Immigration Act 1971

[8] Lewis Silkin – Changes to right to work checks from 6 April 2022 – 20 December 2021 - Lewis Silkin - Changes to right to work checks from 6 April 2022

[9] Moktadir, Julie – Changs in Right to Work Checks – 6th April 2022 - Webinar Recording: Changes in Right to Work Checks | Stone King

[10] Morris, Anne – Right to Work Checks (Employer Guidance) – 9 March 2022 – David Morris - Right to Work Checks (Employer Guidance) | DavidsonMorris

[11] The Statutory Excuse – what is it, why you need it and how you get it – Ward Hadaway – 19February 2019 - The statutory excuse – what it is, why you need it and how you get it (wardhadaway.com)