Spring right to work changes

Getting right to work checks wrong can have significant financial, reputational and operational repercussions for employers if illegal working occurs.

Upcoming changes solidify the Home Office’s intention to create a system where the majority of visa holders evidence their right to work via a ‘digital’ immigration status as opposed to physical visa documentation.

Alongside this increased reliance on the online right to work checking system will be a new system allowing approved third parties to carry out right to work checks on behalf of employers, for certain right to work documentation, for the first time. In these times of increased remote and hybrid working many employers will welcome these changes.

Why are right to work checks important?

What the Home Office deem a compliant right to work check has continued to evolve and change over time, including changes in 2021 to the checks required against EEA nationals post-Brexit. As a result, it can often be challenging for employers to keep on top of the changes.

However, it is crucial that employers are carrying out and recording a compliant right to work check against all employees to ensure they have the right to work and to obtain a ‘statutory excuse’ for each employee. Without a statutory excuse, if illegal working occurs, the employer will be liable for a civil penalty of up to £20,000 per illegal worker.

What are the upcoming changes?

Biometric cards

From 6 April 2022, employers will no longer be able to carry out manual right to work checks against those who hold a biometric residence permit, biometric residence card or a frontier worker permit (“biometric residence card”). So, for example, this would apply to non-EEA Points Based System visa holders.

Instead, employers must use the Home Office online right to work checking service (using a specific portal (View a job applicant's right to work details - GOV.UK (www.gov.uk)) and share code process) if they wish to secure a statutory excuse.

Biometric residence cards will be removed from the list of acceptable documents that can be accepted for a manual right to work check.

As a result of the above if an employer was to carry out a manual check against a biometric residence card from 6 April 2022 they would not have a statutory excuse from a civil penalty, if it later transpired that individual did not have the right to work in the UK.

This will be a big change for the majority of employers.

Retrospective checks will not be required on biometric card holders who used their physical card to demonstrate right to work prior to 6 April 2022. The Home Office also confirmed that employers will maintain a statutory excuse in this situation as long as the initial check was made in line with the guidance that applied at the time the check was made. Repeat checks against such individuals from 6 April will, however, have to comply with the new rules.

Identity Service Provider (“IDSP”) and Identification Document Validation Technology (“IDVT”)

Although the Covid-19 right to work checking concession has been extended until 30 September 2022 a long-term solution was needed to allow employers to carry out virtual checks for British and Irish nationals who were previously outside the scope of the online checking service. The increase in hybrid and remote working has made traditional manual checks against this group more problematic.

This has come in the form of the Home Office announcement that from 6 April 2022 employers will be able to make use of a certified IDSP to carry out digital checks on British and Irish national who hold a valid passport (including Irish passport cards). There will be a charge for employers to use this service, although the exact amount has not yet been confirmed (possibly up to £70 a check).

Broadly speaking employers who opt for this service will follow these steps:

• Employer purchases an IDVT product from a certified IDSP for a cost. Note the approved list of providers has not yet been published, however, the information that has been released so far can be found here: Digital identity certification for right to work, right to rent and criminal record checks - GOV.UK (www.gov.uk);
• prospective employee uploads an image of the identify document which will then be checked using IDVT;
• an output containing the key information would be provided to the employer by the IDSP

• employer must satisfy itself that the photograph and biographic details on the output are consistent with the individual presenting themselves for work; and

• employer must retain clear copy of IDVT identity check output for the duration of employment and for two years after the employment has come to an end.

It is important to note that it remains the responsibility of the employer to obtain the IDVT check from the IDSP and that employers will also only have a statutory excuse if they reasonably believe that the IDSP has carried out their checks in accordance with the Home Office guidance and if they are satisfied that the person presenting themselves for work is the same person subject to the check. Employers will still, therefore, need to conduct their own robust check of the documentation.

It is not mandatory to make use of this service and employers can instead make use of the manual checking process (or the Covid-19 right to work concession until 30 September 2022).

The extension of the Covid-19 checking concession will hopefully allow employers sufficient time to consider whether an IDSP service would be useful for them, develop commercial relationships with IDSPs, get to grips with the process that needs to be followed and make the necessary changes to their pre-employment checking whilst carrying out responsible on-boarding of their chosen IDSP.

What should employers be doing now?

• Review your existing right to work policies / checklists to ensure these are updated to reflect the above changes and other recent developments in right to work requirements.
• Train staff on the latest requirements. It is important that those in the business responsible for recruitment and right to work checks are aware of the above changes and appropriately trained on them. Remember, it is vital that compliant checks are completed to secure a statutory excuse against illegal working.
• Plan ahead for upcoming repeat checks due from 6 April 2022, to ensure a compliant process is followed.
• Familiarise yourself with the new IDSP process, consider if it would be of value in your checking processes (weighing up the cost and convenience of the service against the potential inconvenience of free manual checks) and, if so, develop relationships with these providers. Whilst the cost to employers of the service is not yet known, given the added flexibility the system provides in a post-pandemic world this change is likely to be a popular one with employers.
• Diarise the end of the Covid-19 checking concession, communicate this internally to those completing checks and plan ahead for the changes this will require to your processes and procedures.

For further news and updates on employment law developments as they happen, please follow our specialist Employment Law Twitter Feed @TLT_Employment and subscribe to our Employment Law Focus podcast.