The Challenge the Checks campaign does not simply wish to reform right to work checks, we want to abolish them. However, we know this is a goal that will take time to achieve, so we are pushing for non-reformist reforms. These are changes to a system with the aim of working towards it being completely dismantled.
Why do we need an end to right to work checks?
As a coalition, the Migrants’ Rights Network, Migrants at Work and Open Rights Group do not believe that right to work checks can ever be part of the fight for migrants’ rights. Right to work checks treat migrants and racialised people with inherent suspicion, and contradict our demands for freedom of movement. It enforces borders in our work places and places a burden on employers to become ‘border guards’. We don’t believe anyone should have to prove who they are, including their immigration status.
Legislation that is causing this suffering is complex and confusing, incorporating aspects from employment, data rights and Home Office applications. Migrants are effectively living in fear as their futures depend on error-prone digital services or employers who don’t understand the rules, or misapply them. We are calling for abolition rather than reform because reforms ultimately aim to make an innately harmful system more palatable.
While we want to see the right to work checks infrastructure dismantled, as a coalition we want to tackle the automated digital checks as a preliminary step.
Right to work checks are unnecessary
The right to work checks are about establishing a statutory excuse for the employer against a civil penalty. However, there is no legal obligation for right to work checks. The law does not impose an obligation on the employer to obtain documents, and workers are not required to produce any documentary evidence to any employer.
If a worker is able to provide evidence confirming they have statutory permission to work, then there is no need for an additional process to be carried out, including a digital right to work check.
What are the digital rights concerns with the right to work checks?
Rather than providing migrants with a static piece of evidence to demonstrate their right to work, these digital checks generate a new status every time the check is run. This means that digital information, stored across databases and servers around the country, is being accessed in real time, to pull together records and generate a result.
This is a very complex process to run and, as such, it is liable to encounter errors. Even if the data held on each individual is entirely accurate, which in itself is unlikely, records are often being mismatched and used to draw incorrect conclusions. Moreover, the automated nature of this process means there is little to no possibility of correcting any mistakes.
There are many reasons why this is likely to be unlawful, especially in cases where the abuse of digital systems and personal data may lead to people being denied work, despite being entitled to work in the UK. There are provisions in the UK’s data regulation (2018 Data Protection Act) to protect people from exactly these kinds of automated decisions, requiring human intervention and clear, transparent guidance to the users subjected to them, as a minimum.
What about when someone has a pending application decision i.e. section 3C Leave?
When someone has submitted another in-time application to renew or replace a visa, the applicants and dependents are given leave under section 3c, and will have evidence of an application that has been submitted.
However, we know that there is a huge amount of confusion around section 3c leave, because employers mistakenly believe the worker does not have status/permission to be in the UK (e.g. Indefinite Leave to Remain) and therefore the ‘right to work’.There is significant confusion around right to work checks as some migrants have faced incredible difficulties from existing or new employers who have demanded proof of an application decision before employing them or used this as a reason to dismiss them.
There have been calls for migrants to be given additional documentation to prove they have outstanding leave and are on the same visa conditions before they submit a new application. However, we do not believe that additional documentation will resolve the issue nor is it the solution to the issue, which lays firmly on the implementation of right to work checks in the first place.
Find out more about how we’re challenging the checks.