Since the introduction of the points-based immigration system, we have continued to see developments in how employers recruit from outside the UK. In this hot topic, we look at the recent developments and what is expected in the future.
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Establishing a statutory excuse
When recruiting, an employer must, by law, establish a statutory excuse against liability for a penalty, if an employee is found to be working illegally. Establishing a statutory excuse is gained by carrying out a right to work check, and an essential document for doing this is the Home Office guidance “An employer’s guide to right to work checks 6 April 2022”.
This key guidance document was updated in April 2022 and should be used by all employers when recruiting to avoid financial penalties and claims of discrimination.
Changes to the guidance include:
•Those who hold a Biometric Residence Card (BRC), Biometric Residence Permit (BRP) or Frontier Worker Permit (FWP) can no longer provide physical documents instead, they must use the Home office online service when an employer conducts the right to work check.
•Those who do not hold either a BRP, BRC or FWP and have physical documents to evidence their right to work, cannot have their right to work check conducted electronically until their status is renewed and they have been moved to the new system. This means for employers; manual checks must be carried out.
•Changes have been made to the list of acceptable documents
•Information relating to the sponsored work and student categories have changed
•Guidance has been added to help employers use Identity Service Providers
•An update in regards to the emergency COVID-19 right-to-work checks.
Code of Practice for Employers: Avoiding unlawful discrimination
The Home Office has updated the draft Code of Practice for Employers on how to avoid unlawful discrimination whilst preventing illegal working. This Code of Practice applies to all employers to ensure that a fair recruitment process is carried out.
Identity Services Provider (IDSP)
Prior to April 2022, employers had been able to carry out return to work checks manually or online directly with the Home Office. However, since 6 April 2022, employers can now ask an identity service provider (IDSP) to conduct the check, but it can only be for UK and Irish nationals only.
An IDSP acts on behalf of an employer to carry out the right-to-work checks, but the responsibility for the checks remains with the employer.
By using a third-party IDSP to conduct right-to-work checks on behalf of an employer, then the employer must ensure that:
•The checks carried out via an IDSP satisfies a medium level of confidence. The Government’s Good Practice Guide contains four levels of confidence regarding proof of identity: low, medium, high and very high.
•The IDSP provider is certified and fulfils the requirements of an IDSP service provider as prescribed by the Home Office.
Employers are required to establish, and evidence that the provider carries out checks and verifies an individual’s identity in line with the requirements set by the Home Office. Where this does not happen, an employer may not be able to defend any civil penalties issued, which can be up to £20,000 per worker.
Coronavirus – emergency right-to-work checks
Back in March 2020, the Home Office introduced temporary emergency measures to ensure right-to-work checks could still be carried out during the Coronavirus pandemic. These temporary measures allowed employers to:
Conduct checks over video calls
Receive scanned/photographs of documents via email or a mobile app rather than seeing originals
These measures were intended to last just a few months, but given the continued challenges with the pandemic, they have been extended several times. The last update from the Government back in February confirmed that these checks would be extended once more but would end 30 September 2022.
Homes for Ukraine visa
This new emergency visa was introduced in March and runs alongside the Ukraine Family Scheme, which had already been in place. This new visa is for those fleeing Ukraine and who do not have any family connection within the UK.
It is a sponsored humanitarian route into the UK and allows for individuals, charities and other organisations to become sponsors. The visa would provide up to 3 years living and working in the UK.
Further HR Guidance
•Webinar Recording: you can watch the HR Solutions webinar and download the webinar slides, at https://www.hrsolutions-uk.com/resources/videos-webinars-archive/
•HR Knowledge Base: as part of your PRCA membership you can get access to the HR Knowledge Base, which is the go-to resource for thousands of business owners and managers across the UK. The HR Knowledge Base includes HR documents, templates, legal updates, news and hot topic articles as well as access to free webinars and HR seminars. To find out more call 0844 324 5840 or visit www.hrsolutions-uk.com/members-prca.