Right to Work in the UK for Day Nurseries, Pre-schools and Out of School Clubs

You may be wondering whether the answer to the recruitment crisis is to look to hire overseas candidates for roles in your Day Nursery, Pre-school or Out of School Club. Whilst expert advice needs to be sought as to the routes as to how this can be achieved, this blog sets out to explain the position as its stands in October 2022.

The Right to Work in the UK

UK Nationals, certain commonwealth citizens, EEA and Swiss nationals who have settled status under the EU Settlement scheme and overseas nationals who have indefinite leave to remain in the UK are among those who have automatic right to work in the UK without sponsorship.

The Points Based System

This is the main route to employing overseas nationals who wish to work in the UK but who are not automatically entitled to do so. This is a merits based points system and applies to EEA (excluding Irish) and Swiss nationals who have arrived in the UK after 11 p.m on 31 December 2020 and Non EEA nationals who are applying for entry clearance or permission to stay in the UK. There are several routes to enable migrants to work in the UK and many require the employer to have obtained ‘sponsorship status’.

Sponsorship

To employ someone to work in the UK you may need to possess a sponsor licence and to agree to meet certain duties and responsibilities to continue to hold such a licence. There is, as you might expect, a cost to being a sponsor, we understand there to be an initial cost and then an on-going annual fee. We can’t tell you how to obtain a sponsor licence but there are many immigration specialists available to assist you with this.

Carrying out right to work checks

It goes without saying that in order to avoid allegations of discrimination, it is essential that all candidates are asked to supply documents that prove their right to work in the UK. To avoid employing an illegal worker and the risk of a £20,000 fine per employee, we recommend that you establish someone’s right to work in the UK before they commence employment. You can check someone’s status online using the Home Office’s Right to Work Service. You should see original documents and keep copies of what you see. You should annotate them to say originals seen, the date and your initials.

You might recall that during the pandemic, employers had an exemption from the UK Border & Immigration to phyiscally check an applicants right to work in the UK. This is because when people were homeworking and during lockdown it was often impossible to physically sit down with someone and their ID.

Since April 2022, employers check the right to work status of non-British/Irish applicants using an online service. Employers have been able to ask the applicant for a share code, and check online via the Employers Checking Service. There are no plans for this to change and we feel its working well.

From October 2022, with checking the right to work status of applicants from Britain and Ireland employers will have two choices:

1. Check their right to work documents physically
2. Check on line using a third party provider who will be able to check the right to work digitally on behalf of the employer.

When should we be doing the right to work check?

Employers should check that the applicant has the right to work in the UK before they start work. It’s far easier to resolve if someones doesn’t have the right to work for you before they start by withdrawing the job offer, than after they have been working for you.

How do you check a document physically?

Again, there’s no change in this, its been the case for sometime that the employer should check the legitmacy of the document provided, for example is the passport in one piece? an original? with no tampering? Does it look like its edited or changed? Are you suspicious? Take a photocopy and sign and date the copy for the personnel file.

Don’t forget an out of date passport is still evidence of right to work in UK.

Do we have to go digital?

No for applicants from Britain and Ireland you can continue to check documents physically, this new option to use a third party will only ever be useful for employers who don’t see their employee’s face to face.

If you need any assistance with any aspect of Safer Recruitment please contact us on 01527 909436.

Here’s a link to our Right to Work Policy available as a download.