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Update is aimed at making checking process more straight forward for organisations.

Organisations have a duty to prevent illegal working and, in order to do so, carry out ‘right to work’ checks on their prospective employees to gain a statutory excuse against liability under the civil offence. This check is conducted using documentation provided by individuals, with the government’s three-step checking processrequiring copies to be made of these documents. For certain documents provided, organisation will also be required to carry out a follow-up check as their statutory excuse will be time-limited.

Introduced in April 2018, organisations could use the Home Office’s online right to work checking service, alongside receiving the statutory documents, to carry out their right to work check. With effect from 28 January 2019, organisations can rely solely on the online service to carry out right to work checks, without receiving any documents from the individual. The document checks will continue to apply however where the individual’s immigration status cannot be checked online.

To gain the statutory excuse using the online service, organisations will have to:

  • use the service for each individual and only employ, or continue employing them, where the online check confirms they have the right to carry out the work in question
  • be satisfied that the photograph on the online check is consistent with the appearance of the individual
  • retain and keep a clear copy of the online check response for the period of the individual’s employment and for two years after. This can either be held electronically or in hardcopy.

Where the online checking service is used to employ students, organisations will still require details of academic term dates. Additionally, a follow up online check will have to be carried out in advance of a time-limited statutory excuse expiring.

Where the online right to work check is negative, ie it shows that the individual does not have the right to work in the UK and/or to do the work in question, the organisation will not gain the statutory excuse against civil liability where they employ, or continue to employ, the individual. Where right to work checks cannot be carried out online, such as where there is an outstanding application, appeal, or review with the Home Office, organisations will continue to be required to contact the Employer Checking Service to receive a Positive Verification Notice, providing a six-month statutory excuse.

Additionally, from 28 January 2019, organisations are no longer required to receive full birth and adoption certificates from UK nationals when carrying out document checks. The List A documents have been updated to allow UK individuals to provide their prospective employer with either full or short-form certificates, alongside an official document containing their National Insurance number, to establish a continuous statutory excuse for the length of their employment. This change is aimed at making documentary checks easier for UK citizens who do not have a passport.

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