Significant changes to Right to Work Checks from 6 April 2022 – time for employers to review internal processes

We previously wrote about changes to Right to Work Checks on 20 December 2021 following a change in Home Office guidance.  However, further changes to the same guidance document took place on 17 January 2022 which now includes the introduction of checks via Identification Document Validation Technology (IDTV) on British and Irish nationals.

Background to Right to Work Checks

All employers in the UK have a responsibility to ensure individuals they hire have the permission to work in the UK. This is done by conducting a straight-forward right to work check before the individual commences employment.

The law on preventing illegal working is set out in sections 15 – 25 of the Immigration, Asylum and Nationality Act 2006. Under this Act, an employer may be liable for a civil penalty if they employ someone (on or after 29 February 2008) who does not have the right to undertake the work in question. As long as an employer has carried out a correct check in line with the Home Office’s ‘right to work checks’ guidance and the code of practice, they will establish a “statutory excuse” under the Immigration, Asylum and Nationality Act 2006. By establishing a statutory excuse, employers will avoid being issued with a Civil Penalty of up to £20,000 in the event an employee is discovered not having the permission to work in the UK.

Employers already conducting right to work checks on employees will be familiar with the current process, however, for ease, only the following methods are accepted for the purpose of carrying out a compliant right to work check:

1. Online right to work check via the gov.uk website. This is only available for individuals who have a Biometric Residence Permit (BRP), Biometric Residence Card (BRC) or those with status under the EU Settlement Scheme.
2. In-person right to work check – can be carried out on everyone. This involves the employer inspecting an original document from either List A or List B and then certifying that a physical inspection of the document has taken place.
3. Temporary adjusted right to work check – in place since March 2020. This temporary Home Office concession allows employers to carry out a “virtual” right to work check on a List A or List B document where remote working practices are in place.

However, the above will be changing from 6 April 2022 and we take a look at some of the key changes that employers should be aware of.

What’s changing from 6 April 2022?

End of temporary adjusted right to work checks

The Home Office had announced last year that the temporary “adjusted” right to work checks will no longer be available from 5 April 2022. This was a concession introduced at the start of the Covid-19 pandemic to accommodate for employers who moved to a full remote working policy for their employers in line with Government guidance. Annex D of the Home Office’s guidance on right to work checks provides further information on the end of this concession.

Online only Right to Work check for Biometric card holders

Our previous article in December 2021 went into detail on the new process for carrying out a Right to Work Check on Biometric card holders from 6 April 2022 – please click here for further details. In summary, from 6 April 2022 onwards, individuals who either hold a BRC, BRP or Frontier Worker Permit (FWP) can only evidence their right to work to a new employer using the online service. Home Office guidance confirms these documents will be removed from the list of acceptable documents used to conduct manual checks.

Therefore, employers should ensure from 6 April 2022, any prospective employees presenting either a BRC, BRP or FWP, must have their right to work check carried out using the online service found here.  Further information on these changes can be found at Annex E of the same guidance document.

Use of Identification Document Validation Technology (IDTV) on British and Irish nationals

The Home Office first made an announcement on 27 December 2021 (found here) on their intention of enabling the use of IDVT for right to work, right to rent and DBS checks – the justification being this would help to support long-term post pandemic working practices, quicker on-boarding and recruitment processes and enhancing security of the checks.

From 6 April 2022, employers may choose to use Identity Service Providers (IDSPs) to complete a digital identity check on prospective hires who are either British and Irish nationals and hold a valid passport – NB Irish nationals may also present a passport card.  If using IDSPs, the responsibility of the check will rest with the employer and they will need to ensure the IDSP selected to complete the identify check, complies with the specified requirements and ‘levels of confidence’ as set by the Home Office.

However, the Home Office’s Annex F guidance does allude this process may not be fully outsourced after all – it states “for employers to be able to rely upon the check carried out by an IDSP to prove eligibility for the purpose of a RTW check and obtain a statutory excuse, a valid British or Irish passport (including passport cards) must be checked and linked to the verified identity… the employer must also confirm the image provided to the IDSP is a true likeness of the prospective employer – which can be done either face to face or via video call”. Therefore, this confirms there will still be some element of “checking” a document even if using a IDSP.

Therefore to summarise, from 6 April 2022, employers may continue to carry out a manual right to work check on British and Irish nationals, which must be done face to face. Alternatively, employers could use IDSPs to carry out a virtual check on a prospective employee – this service is likely to involve a fee which may vary from different IDSPs.

Please do not hesitate to contact Sundeep Rathod or any member of our Immigration team should you require any assistance regarding the above or any other Immigration matters.

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