A guide to right to work check changes

Which right to work check changes have been delayed and why?

There are currently three ways to conduct checks on a potential employee’s right to work: 

• Look the job candidate up on the UKVI immigration database in an online check;
• Inspect their physical ID documents in a manual check; 
• Remote checks introduced as a concession during the pandemic, whereby employers are able to use a scan or photo of ID instead of meeting face to face with the actual document.

The latter COVID-19 pandemic measure was set to expire on 5 April, at which point employers choose between in-person checks for British and Irish citizens or paying for a service that provides Identification Document Validation Technology (IDVT) (see below).

The good news for Human Resources teams is that the Home Office has now extended the concession for remote checks during the pandemic until 30 September 2022. Though do be aware that the 6 April 2022 is still the date from which all biometric card holders must evidence their right to work using the Home Office online service only.

The Home Office have intimated that the postponement is to allow firms now more time to carry out an appropriate preferred supplier selection process to find an IDVT provider, including comparing the costs they will charge. Firms now have a few more months before choosing between returning to face-to-face checks or finding a permanent digital service provider. According to the Home Office the new September date gives employers a longer transition period to “implement long-term, post-pandemic working practices”.

Below is a summary of the latest details we have on all the upcoming changes to right to work checks that employers must prepare for. If you want assistance, training or a new bespoke policy for your firm please contact [email protected].

How will right to work checks for biometric card holders change and when?

From 6 April, employers should no longer accept certain physical documents as evidence of a right to work, even if they shows a later expiry date. These include Biometric Residence Permits (BRP), Biometric Residence Cards issued to family members of EEA migrants under the EU Settlement Scheme and Frontier Worker Permits for EEA migrants.

Employers should instead use the free UKVI (UK Visas and Immigration) online checking tool for all biometric card holders. Where someone is employed on or before 5 April 2022 and checks were made at the time using a physical document, employers would not need to do retrospective checks, although follow-up checks will still be required if the employee has limited permission to stay in the UK.

How will right to work checks for British and Irish citizens change and when?

For British and Irish citizens – those unable to be checked on the free UKVI online portal, there will be a range of certified Identity Service Providers (IDSPs) which will use Identification Document Validation Technology (IDVT) to conduct right to work checks and right to rent checks online too. 

The Home Office’s UKVI department have set in motion upcoming changes to the way in which employers will be able to check a prospective employee’s right to work in the UK. The changes are part of the Government’s digital identity framework. Landlords, letting agents and employers will be able to use new technology from certified providers to digitally carry out right to work and right to rent checks.

A Home Office concession has allowed companies to use remote checks instead of seeing job candidates in person during the pandemic. This has now been extended until 30 September 2022.

After previous extensions to the temporary COVID-19 measures proved popular, especially with many working from home and in hybrid arrangements, a permanent system for such remote digital checks has been outsourced to IDSPs. These certified companies will be able to obtain the documents that evidence prospective candidates’ identity, check their genuineness and history. The Disclosure and Barring Service (DBS) is proposing that IDSPs will be able to use IDVT to conduct DBS checks too as part of the Government’s framework for digital ID checking.

How much will remote right to work checks by Identity Service Providers cost?

Unlike the free UKVI service for holders of digital immigration status / BRPs, outsourced IDSPs will charge employers for their services. According to the Recruitment and Employment Confederation (REC), which has been campaigning for quick and easy digital checks to become a permanent feature, and has been consulted by the Home Office, there should be a price of between £1.45 and £70 per check.

The cost appears to depend on the Level of Confidence (LoC) to which these service providers are certified. The REC has complained about this potential extra cost for firms already dealing with National Insurance hikes and rising inflation. A list of certified IDSPs will be published by the Department for Digital, Culture, Media & Sport, along with their certified LoC.

Will employers still be able to conduct free manual right to work checks for British and Irish candidates?

Employers will be able to continue to use manual checks meeting prospective employees face to face if they will not wish to pay for service providers to carry these out digitally. These can be done in person or on a video call if a job candidate has sent their original documents by post or courier, so long as an employer can check the actual physical documents in their hands. Employers may not rely on a scan or copy of the documents or seeing them over a video call format.

Initially it will only be possible to conduct right to work checks on valid British passports, valid Irish passports and valid Irish passport cards using IDVT. Therefore, if an individual wishes to rely on an expired British or Irish passport (or passport card), the employer must undertake a manual check instead of using an IDSP. So unless the pandemic concession for remote checking is extended yet again past September - which is unlikely, these checks will then have to be undertaken using the original, physical document.

Whether using an IDSP or not, employees’ right to work check and illegal working will remain the employer’s responsibility. So, for example, it will be on the employer to make sure they are using a certificated IDSP or that the image in the ID is that of their new employee.

To discuss right to work checks and employer liability further, or for any related advice or help formulating company policies please contact [email protected].