Right to Work Checks from 6 April 2022

Written by Laura Darnley, Brabners LLP

A number of important changes affecting how employers undertake right to work checks have come into force with effect from 6 April 2022.

Extension of the Covid-adjusted right to work checks

Initially planned to be a temporary measure to assist businesses facing the challenges of recruiting during the pandemic, adjusted right to work checks were introduced in March 2020 when it was virtually impossible for employers to carry out face-to-face checking of right to work documentation. Under the temporary measures, employers have been able to conduct virtual right to work checks and establish a statutory excuse against any illegal working penalty without physically seeing the individual (or their ID documents) in person.

From 30 March 2020, employers have been able to:

• ask workers and job applicants to submit a scanned copy or a photo of their original documents via email or using a mobile app; and
• arrange a video call with the worker so that they can show the prospective employer their original documents on camera whilst the employer checks them against the digital copy. The employer must then retain a copy of the document that records the date and is marked as being an adjusted check in line with the required wording; or
• use the online right to work checking service while doing a video call to verify the applicant’s identity.

The temporary measures were initially expected to end on 21 June 2021, before being extended to 31 August 2021 and again to 5 April 2022. In a surprise announcement by the Government on 22 February 2022, the validity of the adjusted checks was extended yet again to 30 September 2022.

Digital Identity Checks

From 6 April 2022, right to work checks have changed such that employers can check a job applicant’s right to work status by:

• Undertaking a Covid-adjusted check (as set out above – but only until 30 September 2022);
• Checking an applicant’s original documents manually in-person (in line with the “traditional” approach); or
• Checking an applicant’s right to work online.

There are two ways in which online right to work checks can be completed.

Firstly, an organisation can use the Home Office online checking service. However, this is only available for a minority of prospective recruits (including those who hold Biometric Residence Permits or Settled/Pre-Settled Status under the EU Settlement Scheme). Importantly, this option is not available for UK nationals. Umbrella companies should also note that since 6 April 2022, holders of Biometric Residence Permits, Biometric Residence Cards and Frontier Worker Permits are only able to evidence their right to work using the online Home Office service. Employers are no longer permitted to accept physical cards as evidence of right to work in the UK, even if the card/permit shows a later expiry date.

Secondly, from 6 April 2022, an employer can also check an applicant’s right to work online using the new digital identity checking service.

New digital checks enable applicants to submit images of their personal documents using Identification Document Validation Technology (IDVT), instead of providing a photograph or a copy of the document. The IDVT system verifies the worker’s identity remotely. The same process is also being implemented for Disclosure and Barring Service (DBS) pre-employment checks.

It is important to note, however, that employers themselves cannot use the IDVT system directly. Instead, they will need to use Identity Service Providers (IDSPs) to carry out digital identity checks on their behalf.

The recently released update to the Home Office guidance on Right to Work Checks* clarifies key points regarding the use of IDSPs:

1. IDSPs are only able to verify valid British and Irish passports (including Irish passport cards). You will not be able to use an IDSP to check expired documents (or any other form of ID document) to establish a right to work.
2. The employer retains important legal responsibilities whilst using an IDSP, so it is important to understand that this is not a mechanism to “outsource” the entirety of the right to work checking process to the IDSP. For example:
   • Under the Guidance, employers must carry out their “own due diligence to satisfy themselves to a reasonable belief that their chosen IDSP has completed the check correctly in the prescribed manner”. Employers will remain liable for the civil penalty where employees are found to be working illegally and it is “reasonably apparent” that the check has not been completed properly by the IDSP;
   • Employers must satisfy themselves that the photograph and biographic details (such as the date of birth) are consistent with the individual presenting themselves for work (in other words that the document has not been presented by an imposter); and finally
   • Employers will also need to account for any discrepancies in “names” where they differ between the documents.
3. Employers will not have a legal defence to any illegal working penalties “where it is reasonably apparent that the prospective employee is not the individual linked to the identity which was verified by the IDSP”.
4. Employers cannot insist that employees submit to an IDSP check. Employers must ensure that alternative options are available, for example where employees do not hold a valid passport or simply do not wish to use an IDSP.

The Government website states that the new system will make it “quicker, safer and more convenient” for employers to carry out right to work checks and that the time spent by organisations in checking their employees right to work documentation will be “slashed”. However, some employers have already expressed concerns about the potential costs associated with the new system.

Costs

Although the new measures have the potential to be an innovative and time-saving way to conduct right to work checks, the reality is that using an IDSP could turn out to be an expensive alternative to the methods already available to employers.

Although the exact costs of the digital system are yet to be confirmed, it has been claimed that these costs could vary from £1.45 to £70 per check with the costs being passed on to the employer. For umbrella companies employing significant numbers of contractors, the cost of using this new system could quickly add up and become completely unaffordable.

The cost associated with the checks is clearly a huge potential issue; if the costs are too great organisations may prefer to rely on the “old school” manual check, which does not incur a cost. If the costs prove prohibitive, this will be a potentially wasted opportunity to modernise and streamline the right to work checking process for UK and Irish citizens.

Penalties for Non-Compliance

The penalties for non-compliance have not changed as part of the overhaul to the rules, and this remains a significant risk for businesses who fail to meet the requirements.

Employers who fail to carry out the checks properly potentially face civil penalties (up to £20,000 per illegal worker), criminal penalties (unlimited fines and up to five years in prison), naming and shaming, reputational damage and the loss of any sponsor licence.

What should employers do now?

• Ensure they understand the new right to work requirements, in particular the changes to the acceptable documents which can be used for a manual check. (As set out above, from 6 April 2022, Biometric Residence Permits, Biometric Residence Cards and Frontier Worker Permits need to be checked using the Home Office’s online checking service and it is no longer permitted to check physical versions of these documents.)
• Decide whether they would like to use IDSPs for checking British/Irish passports. However, given that Covid-adjusted checks remain available until 30 September 2022, we anticipate many employers will defer making a final decision on using IDSPs until closer to this deadline. In practice, employers are unlikely to want to incur the costs of using an IDSP whilst it remains feasible to check British/Irish passports using the Covid-adjusted option.
• If you do intend to use an IDSP, use the time from now until 1 October 2022 to select a suitable provider, assess the costs, build relationships with them and understand/check their processes.
• If using an IDSP, you will need to train staff on the outcomes of the IDSP checks, how they will demonstrate that the check has been undertaken correctly and, importantly, the additional steps needed to establish a valid right to work check.
• If you intend to use an IDSP, you will also need to ensure the option for manual checks remains (and that your employees understand how to conduct these checks), given that you are not permitted to force employees to submit to an IDSP check.
• Review and amend your internal processes and right to work checking policies to reflect the new requirements. Your policies should also address data security and retention issues to ensure compliance with GDPR/data protection requirements.
• You will need to train relevant staff on the new rules and any new policies and procedures in advance of 1 October 2022 when the Covid-adjusted checks cease to be valid. This is a fast-approaching deadline so employers need to take action now.

This bulletin is for general guidance purposes only and should not be used for any other purpose.

Brabners is a Limited Liability Partnership