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CHALLENGE THE CHECKS

Right to work checks are broken. It’s time to #ChallengeTheChecks

About the Challenge The Checks campaign

The Government’s ‘hostile environment’ policies have brought immigration enforcement into every area of life. This includes the workplace. We are calling for an end to right to work checks.

The Migrants’ Rights Network, Migrants at Work and Open Rights Group have partnered to uncover the negative effects of expecting employers to enforce immigration law in the workplace.

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.

The Challenge the Checks campaign aims to investigate and raise awareness of two key areas:

  • Issues arising from right to work checks including the Government checking service and third-party apps
    • Technical issues with platforms such as share code errors, data sharing, discrimination from facial recognition software and workers being illegally asked to pay for them
  • Unfair dismissal or discrimination in the workplace due to a pending immigration status application in the Home Office, known as Section 3C Leave

This campaign will run indefinitely. The coalition will use their combined expertise to piece together the wide extent of how these two areas are affecting migrant communities across the UK. 

What is happening?

Under UK law, the employer carries out a right to work check to establish a ‘statutory defence’ against an illegal employment offence if an individual cannot demonstrate their right to work.

Although the checks are labelled ‘right to work checks’, they do not and cannot check workers’ legal right to work. It is not the law.

Increasingly, these have become digitised, with companies scrambling to offer their own right to work apps and become Government certified Identity Service Providers (IDSPs). 

These right to work services are error-prone and raise serious questions around personal data, data sharing and discrimination. The digital identity checks rely on third-parties which means personal data is at the mercy of others.

There’s also another pivotal concern around right to work policies: what happens to people whose application is pending with the Home Office? Under legislation called Section 3C Leave they’re protected from becoming an ‘overstayer’ and can continue to work. 

But people aren’t being protected. More and more stories are emerging of workers being unfairly dismissed. With no income and no recourse to public funds (NRPF), many are being left destitute: on the verge of poverty and homelessness.  

This is affecting hundreds if not thousands of people, and yet there is little to no coverage or data around the issue. Our Challenge the Checks campaign will kick-off by gathering information to uncover how widespread the right to work problems are.

But we need your help. If you have a story to tell or, if you want to discuss your experience in more detail, you can email [email protected] or call us on 07467 284767.

What is wrong with right to work?

‘Right to work’ or ‘right to work checks’ are probably terms you’ve heard a lot. But what do they mean?

In the UK, it has been made ‘illegal’ to employ someone who does not have permission to work. While there is no legal obligation for an employer to carry out right to work checks, if an employer does carry out one, it will have a statutory excuse against a civil penalty for employing a person illegally. So, it has become  in the employers’ interest to carry these out. 

The employer checks that someone has the right to work in the UK, for how long and is not prohibited from undertaking the work. 

However, it’s not as straightforward as this. Right to work checks are different for British and Irish citizens, and migrants.

How does it work?

British and Irish citizens’ right to work can be verified through third-party providers, known as an Identity Service Provider (IDSP). These use something called Identity Document Validation Technology (IDVT). This is technology that is used to verify someone’s identity.

There are now hundreds of these, and it’s likely there will be lots more.

Employers can directly use the Government checking service to check a migrant’s right to work. This does not use IDVT technology.

So what’s the problem?

On the surface, they might seem straightforward enough. But in fact, it’s another method of enforcing the Government’s ‘Hostile Environment’ policy. 

Many employers are using apps to verify a migrant’s right to work, which is incorrect.

This is a really complex and confusing issue, incorporating aspects from employment, data rights and Home Office application processes. The law itself is implemented in a vacuum which has led some employers to shift responsibility onto the worker. Some other issues we have identified include:

  1. These digital checks have the potential to be discriminatory because IDVT technology uses facial recognition software which is already racially biased. 
  2. Employers do not understand how right to work checks should be conducted, and do not understand who has the right to work  
  3. The online government employer checking service and the Right to Work apps do not work or are prone to errors.
  4. The use of third party providers apps and checking systems means someone’s personal information is now at the mercy of others with little to no choice for the worker. 

What is Section 3C Leave?

Section 3C Leave is to prevent a person who makes an in-time application to extend their leave from becoming an overstayer while they are awaiting a decision on that application and while any appeal or administrative review they are entitled to is pending. 

It also protects them during any following in-time administrative review or in-country appeal after a decision.

Someone has section 3C Leave if they:

  • Have limited leave to enter or remain in the UK
  • Apply to the Secretary of State for variation of that leave
  • The application for variation is made before the leave expires
  • The leave expires without the application for variation having been decided
  • The application for variation is neither decided nor withdrawn

If an in-time application has been made to extend or vary leave, section 3C leave extends the person’s existing leave until the application is decided or withdrawn. 

This is supposed to protect workers, but many aren’t being protected. 

Your Stories

Rohie’s story

These checks have devastated my life… I do not want another soul to go through the same thing I have.

Rohie

No one should have to face questions about your immigration status in the workplace but I did. Now, I am bearing the consequences of ‘right to work’ checks based on my immigration status. 

My name is Rohie and I’m a refugee. My daughter and I are facing homelessness after I was wrongly told by my employer that I had no right to work in the UK. 

I came to the UK in 2005 from Gambia. I had been a support worker for a disability for a charity for seven years when my limited leave to remain came up for renewal. I’ve renewed my leave before and the charity never raised any issues before but this time was different.

In January, I submitted the appropriate documents for my extension on time and received confirmation from the Home Office that these had been received. They also informed me that while they processed my application and prepared my new documentation, I could continue to use my old documents. This cost me almost £3000. Every time I renew my status, it takes everything I have. This is the fourth and hopefully final time I have to renew it.

I was dismissed from the charity I had worked for seven years after managers failed to understand the Home Office’s ‘right to work’ rules. Since losing my job, my 12-year-old daughter and I are struggling to survive on the £20 a week child benefit I receive.

I have been left unsure of where our next meal is coming from, and facing eviction due to rent arrears. My immigration status means I’m NOT entitled to other benefits.

These checks have devastated my life, and I thought I was the only one affected by ‘right to work’ checks but now I know it is a bigger issue than I realised. I do not want another soul to go through the same thing I have. So, I’m very happy to be supporting & campaigning to Challenge the Checks. I hope you will join me in supporting this campaign.


Huge thanks to Nadine White for covering and working with us and Migrants at Work on this story.

A’s story

I’m a British National (Overseas) (BNO) visa holder. I moved to England from Hong Kong because my husband’s family lives here and I’m now based in South Yorkshire.

Before moving to England, I was working in occupational therapy in Hong Kong and it was a rewarding career and the work nature was freelance. After moving to England, I started looking for jobs but unfortunately many employers doubted why there was a month I didn’t work just before coming to the UK. It took much longer than everyone to prepare to move to the country, including paperwork, the approval period of the visa, luggage preparation, etc. However, not everyone understood this.

During interviews, employers focused on why I moved to the country rather than my skills or educational background. A lot of employers told me they only looked for candidates with at least one year of UK work experience, but these jobs welcomed fresh graduates in the job advertisements. Some of the job interviewers even wondered if I was a “foreign bride”.

I tried to get a job through an agency. They requested that I send my passport and any other identification several times. I was asked to login to a website which they claimed to be secure and then recorded my face, my passport and ID card. It was really uncomfortable because their staff had a video meeting with me and asked me if I had the right to work in the UK. I showed them my BNO visa and insurance number but they implied that I was an “illegal” migrant. 

The job agency asked my referee strange questions which assumed that I was a thief or had other problematic behaviours. By that point, I think my wellbeing had been strongly impacted by all the chaos.

Before moving to the UK, I never encountered being accused like this. I think most of the employers or job agencies seemed to have no idea about the current legislation in the UK regarding right to work.

A’s story

Tell your story

Our Challenge the Checks campaign aims to raise awareness of how immigration enforcement in the workplace is affecting migrant workers all over the UK.

But we need your help.

Working in partnership and placing the lived experiences of migrant communities at the centre of our work is a priority for us here at the Migrants’ Rights Network. As part of this campaign, we want to understand how, and to what extent migrants are being affected by the hostile environment. 

If you feel comfortable sharing your story with us, we would love to hear from you. How much you share is completely up to you and you can take as much time as you need. If you want to get in touch, you can email [email protected] or call 07467284767 to speak to one of our friendly team members. 

We have also launched a survey, so if you feel more comfortable sharing your experiences that way, you can do so here.

Please also be aware, your story will not be shared without your consent.

If you require help with your situation, we can signpost and support you for existing issues.

In this campaign

Easy explainers

We know employment rights can be really confusing but we are here to help. That’s why we have created these easy explainers.

Right to work: easy explainer

Easy explainer: understanding right to work checks PART 1 These checks require employers to understand immigration statuses and to interpret the types of immigration documents they may see. It is a very complex issue, so we have tried to explain it simply. Right to work checks establish a ‘statutory excuse’ i.e. protect the employer from a fine or criminal prosecution, if they are found to be employing someone who does not have the ‘right to work’. Right to work checks are carried out by an employer on ALL employees to protect employers from any fines in case they employ someone who does not have permission to work in the UK. Employers will argue that it is necessary for employees to produce evidence of their right to work. BUT that is not the law. Employees do NOT have to produce evidence of their right to work document before they start their new job.
Easy explainer: understanding right to work checks PART 2 How the employer checking service works: The employee will give consent to the (prospective) employer by sending a share code of their right to work using the ECS. Copies of these documents should be made and stored securely. Your information and copies of immigration documents are confidential, and should be handled as such. The date of the checks should be recorded along with the name of who carried out the check. Sometimes an employer will undertake ‘right to work’ checks once you have been employed. If they do this, it is because they have a duty to contact you within a certain time, when you have an upcoming expiration date for your visa. They will want to check if you will have an application to extend your visa. The employer may ask you to show new immigration documents once your application has been granted, and your visa extended. They will want to check if you will have an application to extend your visa. The employer may ask you to show new immigration documents once your application has been granted, and your visa extended. If they only check people from a migrant or BAME background then this IS discriminatory, & you CAN challenge this.

Section 3C Leave: easy explainer

Easy explainer: understanding section 3c leave PART 1 Section 3C Leave is an immmigration mechanism. It is something that prevents a person who makes an in-person application to extend their leave from becoming an ‘overstayer’: legal rights to work and stay in the UK. This is while they await a decision on their application and while any appeal or administration review they are entitled to is pending. During this time, they will continue to have any right to work that they previously had. Application must have been made before existing permission expires. -------> Section 3C Leave is triggered. An email receipt confirmation of an in time application is sufficient to evidence the person's legal right to work, provided that the person had the right to work before the permission expired. The person does not need any other documentary evidence. The person's right to work will not be withdrawn while awaiting a decision on their application, and while any appeal or administrative review of any refusal decision is pending.
Easy explainer: understanding section 3c leave PART 2 Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. They are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. In-time application: An in-time application is an application made by a person in the UK who at the time of application has leave to enter or remain. Where an in-time application to extend or vary leave is made and the application is not decided before the person’s existing leave expires, section 3C extends the person’s existing leave until the application is decided (or withdrawn). In spite of the Home Office delay, your document being expired, or the Employer's Checking Service or Online Checking Service returning a Negative Verification Notice, you have an ongoing right of residence in the UK, including the right to work .
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