Illegal working checks must adapt to the work-from-home age

All being well, the government’s advice to work from home looks likely to be lifted from 21 June 2021. With offices filling up, and city streets bustling, normal working life is starting to resume. But remote working patterns are clearly popular with workers and employers, and are likely to be around for some time to come. 

The growth in remote working has implications for the obligations of employers under immigration law, particularly in relation to checking their employees’ right to work in the UK. This system has traditionally required the physical presence of the employee or their immigration documents at a place of work in order for the check to be validly carried out. Despite some recent developments, the prevention of illegal working system remains flawed and will need to be adapted if remote working, and digital immigration status, become the norm.

What is the prevention of illegal working system?

The prevention of illegal working system incentivises employers to ensure their employees have permission to work in the UK. Failure to do so can lead to penalties, ranging from fines to closure of premises to even criminal prosecution. Since section 15 of the Immigration, Asylum and Nationality Act 2006 came into force in February 2008, employers can avoid adverse consequences by carrying out a ‘right to work check’ before an employee starts work.

This is important for two reasons. Firstly, and most obviously, it provides the employer with reassurance that the person can legally work in the UK. Secondly, it also gives the employer a form of legal protection — a sort of “get out of jail free” card — if it turns out they have unwittingly employed someone who does not have the right to work in the UK. A correctly conducted right to work check provides the employer with a “statutory excuse” against the civil penalty (i.e. a fine of up to £20,000 per worker) which can otherwise be imposed if they inadvertently employ an illegal worker. 

It is therefore vitally important for an employer that they carry out the right to work check correctly. Money aside, companies risk the reputational damage of being named and shamed if they receive a fine. 

There are currently two possible ways to carry out the check which carry with them the protection of the all-important statutory excuse.

Manual right to work checks

If we ignore its clunky title, the “manual” right to work check is best thought of as the standard right to work check. This process involves an employer checking a worker’s physical documents to ascertain whether they have the right to work in the UK.

The first step is to work out if the documents a worker is presenting — whether a passport or other form of ID — are acceptable. The Home Office’s Right to Work checklist is immensely helpful in this regard. The employer must then try to make sure that the document belongs to the person in question — does the photo match the person in front of you, does it look like an obvious forgery? — and keep a copy on file.

The good news for remote workers is that the check can be carried out either with the worker physically present with the person carrying out the check, or live via video link. The bad news is that the employer must have hold of the physical documents even if the worker is appearing on Zoom. For anyone working from home, this means having to post your documents to your employer, something that neither the worker nor the HR professional are going to be very keen on.

So what other options are there? 

Online right to work checks

Handily, employers can now verify the immigration status of some of their workers digitally. Launched in early 2019, the Home Office’s online right to work system is designed to provide employers with “up-to-date, real-time information about migrants’ right to work”.

The system requires the worker to provide the employer with a “share code” which the employer can use to access a portal on the government website. This allows them to view the person’s immigration record held by the Home Office, which should, hopefully, indicate clearly whether the person has the right to work in the UK. 

A great premise in theory: it avoids an employer having to work out someone’s immigration status from a few cursory words on a vignette or a biometric residence permit. In reality, though, the system falls short. The main problem is that the online right to work system is currently only available to those workers who either have a biometric residence permit/card, or who hold some form of “digital” immigration status such as under the EU Settlement Scheme. Employers currently cannot check a British worker using this system, meaning it is currently useless for the vast majority of remote workers in the UK.

There are also growing concerns that data held in the system may not be accurate or present a true reflection of a worker’s ability to work in the UK. We are already hearing reports from employers of incorrect information being given when they have used the system. This carries the real risk of foreign workers being unable to start jobs or being unfairly dismissed. As the online system is the main way for employers to check the status of EEA/Swiss nationals under the EU Settlement Scheme, which they will be required to do from 1 July 2021 onwards, these defects need to be ironed out — and fast.

Virtual checks during the pandemic

The limitations of the current prevention of illegal working system for remote workers were thrown into the spotlight by the outbreak of the COVID-19 pandemic in March 2020. To its credit, the Home Office quickly announced a pragmatic solution once offices started to close; it has been allowing employers to carry out an “adjusted right to work check” if they cannot use the online or manual procedures. 

The adjusted process allows an employer to carry out a purely virtual right to work check. The employer can check the documents with the worker on a video link holding up their documents. It has proved very popular with employers, providing them with the security to onboard workers remotely without them having to come into the office or put important documents in the post.

These remote checks have no legal basis so do not provide a statutory excuse against a possible civil penalty; the Home Office just promises that it “will not take any enforcement action against you if you carried out the adjusted check”. The adjusted process therefore had to come to an end at some point, but the hope was that this would be managed in such a way as to cause minimal impact for employers. 

But with fears that the adjusted process could increase the risk of fraud, the Home Office developed itchy trigger fingers. It decided to pull the plug on the process, firstly announcing it would end on 17 May but then pushing it back to 20 June after an outcry from businesses.

One positive is that employers will not need to carry out retrospective checks of workers who have started over the last year under the remote checking system. All the same, many businesses are worried about how they will manage once the adjusted process ends. With workers staggering their return to the office and others having adopted fully remote working practices, the standard procedures for carrying out right to work checks are simply unworkable. 

The move towards digital immigration status

We may not need to wait long for a solution. The inexorable direction of travel at the Home Office is towards digital immigration status which means that in a few years vignettes in passports and biometric residence permits will be obsolete. Technology will need to be put in place to allow employers to carry out all right to work checks online — so the news that the Home Office is looking at introducing an online option for those British and Irish nationals who cannot use the current system is long overdue. 

With the right tech solution in place, employers will be able to accommodate remote working and still meet their prevention of illegal working obligations. Whatever solution is found, it must be workable and, most importantly, it must be accurate. A data-driven approach to right-to-work checks will certainly benefit remote workers, but if this system has faults jobs could be needlessly lost.