Supinder Singh Sian Naomi Hanrahan-Soar October 5 2022 Right to work checks: FAQs Lewis Silkin LLP | Employment & Immigration - United Kingdom Supinder Singh Sian, Naomi Hanrahan-Soar Employment & Immigration Would a buying entity in an M&A transaction be liable for non-compliant right to work checks?Are right to work checks required for contractors?Will certified IDSPs cover the checks fully, or could employers still be at risk of a fine?Do employers have to pay for the IDSP?Does the reviewer require the original documents where a video check is performed?Under what circumstances do employers need to see the person physically?Can employers use only online right to work checks for employees?Can adjusted right to work checks be used for employees starting on 1 October 2022 or soon after?Which IDSP provider is recommended?How should follow-up ID checks be recorded if an IDSP is used?Can students complete mandatory work placements if they can work only 20 hours a week during term? Would a buying entity in an M&A transaction be liable for non-compliant right to work checks? It is not possible for a buying entity in an M&A transaction to exclude the risk of becoming liable for paying a civil penalty where an employee is found to be working illegally and the selling business did not carry out a compliant right to work check.The Home Office advises employers who acquire staff under the Transfer of Undertakings (Protection of Employment) Regulations 2006 to carry out a fresh right to work check within 60 days from the date of the transfer. This will make the employer compliant with the Home Office's guidance, which is important for sponsor licence compliance. However, if illegal working is detected as part of this check, the employer may be liable for a civil penalty and should also begin the process for termination of employment. Both immigration and employment law advice should obtained if this situation arises.Are right to work checks required for contractors?Employers are not required to carry out a right to work check for a person engaged as a self-employed person under a contract for services, unless they are also sponsoring that person.The Home Office does, however, recommend that businesses carry out right to work checks for self-employed contractors to minimise the risk of business disruption or reputational damage if it comes to light that a contractor does not have the right to work in the United Kingdom.Will certified IDSPs cover the checks fully, or could employers still be at risk of a fine?Digital checks using an identity service provider (IDSP) can be used to establish a statutory excuse against liability for illegal working in relation to holders of valid British and Irish passports. However, employers should be aware that the employer remains responsible for ensuring the visual check is also carried out and documented. It is not sufficient, for example, just to retain the identity document validation technology report generated by the IDSP without also documenting that the employer has carried out a visual check of the person presenting for work and has retained any other required supporting documents – for example, regarding a change of name. A statutory excuse will also not be available if a digital check is carried out after a person's employment has started.It is allowed for an employer to use an IDSP that is not certified under the Department for Digital, Culture, Media and Sport's UK Digital Identity and Attributes Trust Framework. However, using a certified provider maximises the likelihood that the Home Office will consider that the IDSP is able to carry out digital identity verification to at least a medium level of confidence, which is the minimum accepted by the Home Office for digital right to work checks using an IDSP.Do employers have to pay for the IDSP? Yes, the IDSPs all charge a fee for their services. The fee structures vary across the various IDSPs.Does the reviewer require the original documents where a video check is performed?Yes; from 1 October 2022, the reviewer must have the original document(s) when carrying out a manual right to work check. It is, however, still acceptable for the original documents to be checked with the person present via live video link rather than in-person.Under what circumstances do employers need to see the person physically?It is not necessary to see the person physically. A live video link is acceptable for the visual check element of a manual, online or digital check using an IDSP.However, where the reviewer needs to check physical documents, it may be cheapest and most convenient for these to be reviewed with the person physically present. This is because there would be no need to receive, handle, store and/or return the documents.Can employers use only online right to work checks for employees?No, the Home Office's online system only covers certain individuals with limited immigration permission or who are settled in the United Kingdom. Note that since 6 April 2022, an online check is the only acceptable check for holders of biometric residence permits, biometric residence cards and frontier worker permits.There will be some employees for whom a manual check is the only option. For British and Irish nationals with a valid passport (including Irish passport card), a digital check can be carried out using an IDSP. However, these individuals can opt for a manual check if they wish.Can adjusted right to work checks be used for employees starting on 1 October 2022 or soon after? An adjusted right to work check can be used for an employee whose start date is on or after 1 October 2022, provided it was carried out on or before 30 September 2022. For any manual check carried out on or after 1 October 2022, the adjusted process cannot be used.Which IDSP provider is recommended?The most appropriate IDSP may vary depending on an employer's individual needs (for further details, see "Using IDSPs for digital right to work checks").How should follow-up ID checks be recorded if an IDSP is used?There will not be any follow-up right to work check required. This is because digital checks using an IDSP currently only cover checks for British and Irish citizens who have an ongoing right to work in the United Kingdom.However, some IDSPs' services include the option to manage the right to work check process for all checks, including manual and online checks. Using an IDSP for this purpose will not form part of the statutory excuse, but an employer may choose, for other efficiency or risk minimisation reasons, to use the same management system for all employees. Enquiries would have to be made with the IDSPs to determine whether they incorporate a mechanism for generating reminders for follow-up checks, or if the employer would have to maintain a separate system.Can students complete mandatory work placements if they can work only 20 hours a week during term? Yes, a student who is undertaking a work placement that is assessed as an integral part of their course may do this full time for the duration of the work placement. The specific requirements vary depending on the student's sponsor and the type of course they are undertaking.For further information on this topic please contact Supinder Singh Sian or Naomi Hanrahan-Soar at Lewis Silkin by telephone (+44 20 7074 8000) or email ([email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.