Right to Work Changes – digital right to work check tool and forthcoming changes

All employers are at risk of a civil penalty for illegal working unless they carry out basic right to work checks before employing someone. The UK Government updated its right to work check guidance in January 2022: employers need to carry out the checks on a repeat basis for anyone who has permission to work in the UK for a fixed period of time. The checks must be carried out in accordance with the most recent guidance.

Employers previously had the option to either carry out a manual check, or use the Home Office’s online tool to carry out a check confirming whether the prospective employee had the legal right to carry out the work in question.

The Home Office have confirmed that from 6 April 2022, employers will only be able to use the online right to work check service for those individuals issued with a Biometric Residence Permit (BRP) or a Biometric Residence Card (BRC). Employers will no longer be able to conduct a manual check to retain a statutory excuse and protect themselves against prosecution.

This requirement will not apply retrospectively, and an employee can prove their right to work by:

• accessing their right to work on the Home Office’s online service
• creating a share code, and providing this to their employer along with their date of birth
• the employer then checks this right to work using the online service too.

The employer will also be required to certify that the photo on the check is that of the individual, and as such will require the employer to either meet the individual in person or via video link. Once the check is complete, evidence of this should be retained on file as usual.

Note that European nationals with status under the EU Settlement Scheme (settled or pre-settled status) could only provide evidence of their status online, and continue to be able to do so in the same manner. The use of this service remains free of charge for both the employee and the employer.    

Right to work checks for British or Irish nationals with valid passports / passport cards

The Home Office have announced that from 6 April 2022, employers will be able to use Identification Document Validation Technology – by contacting approved Identity Service Providers (IDSPs) – to conduct online right to work checks on British and Irish nationals with valid passports and passport cards.

Previously British and Irish nationals could only prove their right to work by providing copies of their passport (or other applicable documents) manually. Under this process, the employer will have the option to contact an IDSP, who will be certified and approved by the Home Office to provide this service. The Home Office will maintain a list of IDSPs, which will be available to view publicly. The IDSPs will use the following five part process to conduct an online check:

1. obtain evidence of identity
2. check the evidence is genuine or valid
3. check the identity has existed over time
4. check if the identity is at high risk of identity fraud
5. check that the identity belongs to the person claiming it.

The Home Office have also confirmed that the last stage will require an employer to provide the IDSP with an image of the individual along with confirmation that it is a true likeness of them. This check can be made in person or via a video link.

Some questions do remain however around this new process on which we await further guidance from the Home Office including the following:

• although we are aware that the legislation will come into force from 6 April 2022, we do not yet have further detail on the precise introductory and availability date for this new technology
• given that it will be third parties who will be certified by the Home Office to carry out these checks, it is likely to carry a cost. We do not have clarity on the precise costs and await further guidance.

It is worth bearing in mind that this service is only available where individuals have valid British or Irish passports. For expired passports, employers will need to continue using the manual process. It is therefore likely that staff conducting these right to work checks will need to be aware of the several options available to them, and to ensure that they are conducting the checks in a compliant manner, to ensure the statutory excuse against prosecution is retained.

The temporary adjusted right to work checks due to Covid-19

Briefly, the Home Office introduced updated guidance on conducting right to work checks at the onset of the pandemic. Primarily these involved conducting the right to work checks virtually over video link and were considered a major concession from the Home Office.

The Home Office have confirmed that the end date for these temporary adjusted checks has been deferred to 5 April 2022. It is therefore evident that the Home Office intend to move to a more digital right to work checking service and process from 6 April 2022.

Conclusion

The Home Office are moving full speed ahead with a fully digital right to work check process. The new processes may require employers to train their staff on how to conduct the checks in a compliant manner to retain statutory excuse. In some cases these will involve additional costs, and may also require staff to be aware of circumstances where a manual check may be needed. In almost all cases, some form of face to face or video link interaction will be required with the individual to confirm the photo on their identity and check.

The new process provides employers a chance to review their internal processes and seek to streamline this process. As we say however, we anticipate further guidance from the Home Office and will produce commentary in due course.