From 1 October 2022, the transitional arrangements for right to work checks have ended, meaning employers can no longer rely on a Covid-19 adjusted check. Checks must now be done using one of the following methods:
- Manual right to work checks
- The Home Office online checking service
- Identity Document Validation Technology (“IDVT”) via the services of an accredited identity service provider (“IDSP”)
- The Home Office employer checking service for applicants with a pending immigration application, appeal or review.
The type of check will depend on the immigration document held by the worker, as outlined below.
|Right to work method
|BRP, BRC or Frontier Worker Permit holders
|Those with e-visas or ‘digital’ status (e.g. EUSS or those who applied using the UK Immigration: ID Check app)
|Those not eligible for online checks (e.g. British or Irish passport holders or those with a visa vignette in their passport)
|Manual right to work checks.
Alternatively, for British and Irish citizens with valid passports, employers can use IDVT via the services of an IDSP.
What are IDSPs and how can you use them?
IDVT is a means of digitally verifying an individual’s identity. Employers can use the services of accredited IDSPs to complete the digital identity verification element of right to work checks remotely for those who hold either a valid British or Irish passport, or a valid Irish passport card.
The list of certified IDSPs can be found here.
It is important to note that:
- When using an IDSP, employers must still carry out an ‘imposter check’ by confirming that the image and biographic details provided on the IDVT check are consistent with the individual presenting themselves for work. Where it is reasonably apparent that the prospective employee is not the individual linked to the identity verified by the IDSP, the employer won’t establish a statutory excuse.
- Employers remain responsible for the right to work check. They must ensure that the IDSP selected meets the specified requirement, and that adequate training is provided to staff, for example on what information staff must obtain from an IDSP to confirm verification of identity. Employers will only establish a statutory excuse where both the employer and the IDSP has complied with all the statutory requirements.
- For non-British and Irish nationals and for British or Irish nationals who hold expired passports or passport cards, the use of IDSPs will not provide a means to check their right to work.
Why is it important to conduct a right to work check correctly?
Where an employer has employed an individual without the appropriate immigration permission, employers may be liable to pay a civil penalty. However, if an employer can show that it carried out a compliant right to work check prior to the commencement of the individual’s employment, the employer will establish a statutory excuse.
For organisations that hold a sponsor licence, a failure to comply with the right to work guidance may constitute a breach of its sponsor duties. Receipt of a civil penalty may also affect an organisation’s sponsor licence and its ability to sponsor workers in future.
The UKVI also updated their guidance recently and widened the scope to check compliance. They can now carry out digital compliance checks as well on-site visits. Digital compliance checks include ‘desktop audits’, liaising with other governmental departments to check information about sponsor licence holder and interviewing key personnel as well as migrants.
It’s therefore vital that your onboarding process and your staff are kept up to date with the right to work processes.
For an overview of what we can do to help you prepare, please see our compliance MOT packages, which can be found here.