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1 October 2022: Change in Right to Work Requirements

September 2022

During the COVID-19 pandemic, the government introduced digital ways for employers to check employee’s right to work in the UK because of the difficulties associated with manually checking documents. These arrangements end on 30 September.

New digital right to work checks, using ‘identification document validation technology’ (IDVT), became available for employees with valid British or Irish passports from 6 April 2022. Employers can use a ‘identity service provider’ (IDSP) to carry out this check, although they remain responsible for checking the identity of the employee and retaining the record for the duration of employment plus two years.

From 1 October, employers will need to either:

• Carry out a manual check by physically meeting with the employee to check and copy their original documentation.

• Appoint an ‘identification service provider’ (IDSP) to check the passport of the employee on their behalf or carry out the check themselves using ID document validation technology.

Government guidance has been updated and has a list of approved IDSPs. The Employer Checking Service continues for right to work checks on non-UK/Irish citizens.

It can be tricky for employers to stay up to date with how to complete right to work checks especially given the government’s ever-changing guidance in this area. We outline recent developments and what employers need to know now and for the future.

Every employee, regardless of nationality, requires a right to work check. However, it can be a minefield for employers to navigate this area due to the evolving guidelines – and not least because the government are constantly striving to streamline services, whilst simultaneously cracking down on illegal immigration in the United Kingdom.

At what point should a right to work check be carried out?

Provided that the check is carried out before an individual commences their employment, there are no prescriptive rules regarding when it should be completed. Despite this, employers should be mindful that leaving right to work checks until the last minute can cause a whole host of problems. It is not uncommon to hear of employers unearthing problems with a new starter’s right to work and subsequently having to back track and withdraw an offer of employment. Withdrawing an offer of employment is significantly easier, and more cost effective, if the employee has not already signed a contract of employment or worst, turned up on the first day ready to work.

As such, we would strongly recommend that all right to work checks are conducted at the point an offer of employment is made. Any offer of employment should always be conditional upon the right to work requirement being satisfied which then leaves scope to retract the offer, or deal with any problems that might arise, prior to the start of the employment. Employers should therefore seek to build the right to work check into their recruitment or induction programme.

Updates to the guidance

The Home Office have announced that on 30 September 2022 the adjusted right to work checks (introduced during the pandemic) will cease. As it stands, this enables employers to check British/Irish nationals right to work either via a manual check or by arranging a video call with the employee and checking their scanned documents.

After the 30 September 2022 the requirements will change for British/Irish nationals right to work checks. From 1 October 2022 these can be completed one of two ways:

1. Physically - meeting with the employee and ensuring that the documents they are presenting are original, untampered with and belong to them. Employers should then take a signed and dated copy of the document/s and retain these securely.

2. Online - by appointing an Identification Service Provider (“IDSP”). The IDSP will then use Identification Document Verification Technology (“IDVT”) to check the passport of the British & Irish national on behalf of employers.

The Home Office have promised to release a full list of IDSP in due course so that organisations can begin making enquiries in time for the 1 October 2022 introduction date.

However, at the time of writing, there are only a handful of certified IDSP organisations listed on the government website. Employers seeking to instruct an IDSP will need to pay a fee, although what this looks like remains unclear and will largely vary between providers.

Since the 6 April 2022 the requirements for checking non-British/Irish nationals have been somewhat simpler. Employers must seek a share code from the employee and use this to check their right to work via the Employer Checking Service. There are no plans for this to change.

Acceptable documentation for British & Irish nationals

When carrying out a manual right to work check, Employers must obtain original documents from List A of the guidance. These are as follows:

• passport – this can be current or expired but must show the holder is British citizen of the UK and Colonies having the right of abode in the UK;

• passport card – this can be current or expired but must show the holder is an Irish citizen;

• passport endorsed – this must show that the holder is exempt from immigration control;

• birth certificate or adoption certificate – this must be issued by the UK or Ireland, together with an official document giving the holder’s National Insurance number; or

• certificate of naturalisation – together with an official document giving the holder’s National Insurance number.

An IDSP will only be able to check current valid passports. If an employee is seeking to rely on any other type of document listed above, or an expired British passport, then the IDVT route is not available and a manual check will need to be completed.

It is also important to highlight that using an IDSP to complete the right to work check doesn’t absolve employers of liability. Employers will still be expected to ensure they obtain and retain a copy of the document that the IDSP checked as well as a copy of the IDVT report showing that the worker has the right to work in the UK. This has led many to question the actual benefits of completing right to work checks digitally.

The main benefit as far as we can see is that it will negate the need for employers to have to physically meet with workers to complete the right to work check. For businesses with sites and staff across the UK this should mean that right to work checks on British and Irish nationals are completed consistently whilst also saving time and reducing their administration.

Obtain, Check, Retain

Where a manual right to work check is conducted it is important to ensure that copies of all right to work check documentation is kept securely for the duration of the person’s employment and for a further two years once they cease employment with the organisation. Employers should also be able to produce these document copies quickly in the event that they are requested to show them to demonstrate that a right to work check has been performed and in order to retain a statutory excuse.

Why is the guidance changing?

The Home Office have been on a mission to digitalise immigration services and processes wherever possible. We have seen the visa application process revolutionised by the introduction of the UK Immigration: ID Check app which negates the need for applicants to attend a visa centre and provides a secure platform for them to upload their biometric information directly to the UKVI portal. It is also expected that Biometric Residence Permits will be obsolete by the end of 2024 with migrants relying on a purely digital status to evidence their right to work and reside in the UK.

For a while now non-British & Irish nationals have been able to prove their right to work status by simply logging into their UKVI account and generating a share code which is then passed to their employer. A simple check on the employer’s side confirms the status of the migrant. It is therefore unsurprising that the IDSP concept has been introduced.

What should employers be doing right now?

• IDSP – decide if using the IDSP route is appropriate, taking into consideration the cost, the resources available to complete the check and the location of workers.

• Review policies – there have been a lot of changes in the way workforces operate over the past few years. It is therefore important to ensure that policies around recruitment, right to work checks and inductions are up to date to reflect current practice and legislation.

• Training – offer training to employees who undertake right to work checks so that they properly understand the different processes that need to be followed.

• Audit – complete an audit of those employees holding time-limited immigration status to ensure that the expiry dates have been properly recorded on HR systems and that follow-up checks have been scheduled.

• Look ahead – consider how the workforce will look in years to come and how right to work checks, along with wider HR processes, can be implemented or amended to assist with the end goal.

The contents of this Newsletter are for reference purposes only and do not constitute legal advice. Independent legal advice should be sought in relation to any specific legal matter.

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