Significant changes to the processes for conducting compliant right to work checks are on the horizon. These include the removal of the employer’s ability to be able to rely on physical checks on non-UK nationals holding certain immigration documents, the end of adjusted right to work checks introduced during the pandemic and, most significant of all, the introduction of the option to conduct checks via Identification Document Validation Technology (‘IDVT’) on British and Irish nationals.
The Home Office can impose significant penalties on employers who employ people who do not hold appropriate immigration permission to work. Penalties are imposed if the employer has not conducted a check on those individuals in the required manner needed to establish a ‘statutory excuse’ under section 15 of the Immigration, Asylum and Nationality Act 2006.
Employers should therefore ensure that valid right to work checks are carried out on all employees. Establishing a statutory excuse means that an employer will avoid a civil penalty of up to £20,000 if it transpires that an employee does not hold permission to work in the UK.
The most up to date Home Office right to work checks guidance, which includes detailed information on how to carry out right to work checks, is available here. Employers are encouraged to review this guidance regularly.
How are right to work checks carried out presently?
There are currently four types of right to work checks:
- A traditional manual right to work check which allows an employer to physically check an applicant’s documentation. Currently this can be used for all employees and potential employees. The Home Office has a helpful checklist which can be used to support such a check. This type of check is free.
- A right to work check via the employer checking service. This allows the employer to check the immigration status of employees and potential employees where they cannot provide their physical documents (for example, because they are with the Home Office as part of a fresh application).
- Online checks for holders of certain documents.
- Adjusted right to work checks introduced during the pandemic.
What changes are being made from 6 April 2022?
The changes referred to below come into effect on 6 April 2022.
Online only right to work checks on biometric card holders
A new Annex E has been added to Home Office right to work checks guidance. Whereas under the current process a manual right to work check can be carried out for all, including for those who hold a biometric card, this will no longer be possible under the new guidance.
From 6 April 2022, an employee or potential employee holding a Biometric Residence Card, a Biometric Residence Permit or a Frontier Work Permit will only be able to have their right to work checked via the online service. Full details of how to conduct such checks are contained in the Home Office right to work checks guidance. This service is free to use.
Employers who carried out a manual right to work check or Covid 19- adjusted right to work check before 6 April 2022 will not be required to carry out a retrospective check after this date.
New process using Identification Document Validation Technology
Following on from the Home Office policy paper published on 27 December 2021, employers will be able to choose and pay a certified Identification Document Validation Technology (‘IDVT’) service provider to carry out digital identity checks on their behalf on British and Irish passport holders (including Irish passport cards). Details are currently limited but those that are available are contained in Annex F of the Home Office right to work checks guidance.
Data on British and Irish nationals is of course not available on the Home Office’s immigration database, which stores information on those who are subject to immigration control. Instead of a scan or copy of a passport being physically presented to the employer, the potential employee can use the IDVT service to upload an image of their ID document, or to read the biometric chip. The technology will check the data and this may include requiring an image of the individual via live video.
The IDVT provider records the necessary information which the employer then reviews to complete the right to work check and gain the statutory excuse.
It is important to note that it will not be compulsory to use this service and employers can continue to carry out (free) manual right to work checks for such individuals if they prefer.
For organisations thinking of becoming an IDVT service provider, guidance has been issued by the Department for Digital, Culture, Media & Sport.
The end of temporary adjusted right to work checks
In response to the pandemic the Home Office introduced temporary adjusted right to work checks in March 2020. This meant that a manual check was not required. Instead, it has been possible to conduct checks over a video call, sending a scan or photo of the proof of right to work to the employer electronically.
The Covid-19 guidance has been updated several times since the pandemic started and has just been updated to confirm that adjusted checks will continue to be permitted until 30 September 2022 for those who qualify for them. As referred to above, from 6 April 2022, an employee or potential employee holding a Biometric Residence Card, a Biometric Residence Permit or a Frontier Work Permit will only be able to have their right to work checked via the employer checking service.
Further information on the adjusted right to work check process is set out in Annex D of the Home Office right to work guidance. Employers who wish to benefit from non-physical checks will be able to pay for the IDVT service where the online service cannot be used.
This article was originally posted on 28 January 2022 and has been updated to reflect changes in policy.
How our Immigration Solicitors can help
We are experienced in advising employers on how to conduct compliant right to work checks.
If you require legal advice regarding this or any other aspect of immigration law, our immigration specialists are always happy to have an initial discussion, please contact us or complete our enquiry form below.