In March 2020, in the midst of the COVID-19 pandemic and associated restrictions, the Home Office introduced temporary measures to allow employers to conduct Right to Work checks remotely via video call, as opposed to requiring face to face in-person checks.

As a result of extensive campaigning by various organisations and, in particular, the recruitment sector trade bodies, the adjusted checks have remained in place since that date. However, these will now come to an end on 30 September 2022. 

From 1 October 2022, employers will either need to revert to the pre-pandemic way of checking right to work (by way of in-person manual checks using original documents) or they will have to use the Home Office’s online right to work check service (for those with Biometric Residence Cards/Permits or eVisas) or they will have the new option of using an Identification Document Validation Technology ID check (IDVT).

As a reminder, employers who fail to carry out the checks properly remain exposed significant penalties if illegal working occurs, including civil penalties (up to £20,000 fine 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.

Using IDSPs; what do employers need to know?

IDVT checks came into force on 06 April 2022. These allow Identity Service Providers (IDSPs) to digitally verify the identity of British and Irish citizens, who hold a valid passport (including Irish passport cards).

The Home Office takes the view that these digital checks will help support long-term post pandemic working practices, accelerate the recruitment and onboarding process, improve employee mobility and enhance the security and integrity of the checks.

Importantly, however, there is a lot of misinformation circulating about IDSPs and the role they play in the right to work checking process.

As a fundamental point, employers must be aware that if they choose to use an IDSP this does not outsource the right to work check process to an IDSP. Further, using an IDSP does not pass on any liability for illegal working; this remains the liability of the employer and not the IDSP.

The employer still plays a key part in the checks by IDSPs.

Firstly, employers wishing to engage an IDSP also need to do some homework as to which provider they wish to use. These decisions may be led by resources, as well as the practicality and costs of using an IDSP. Importantly, employers must undertake their own due diligence and check that the IDSP they wish to engage is able to properly undertake the digital verification checks and meet the Home Office’s standards. The Home Office holds a list of certified IDSPs i.e. those that have been approved by the Department for Digital, Culture, Media and Sport to meet its trust framework for undertaking digital identity verification checks. Employers are not obliged to use certified IDSPs, but may well wish to do so, so that they have the reassurance that their provider has met the Home Office’s standards.

Secondly, the employer must be satisfied that the photograph and biographical details within the IDSP report are consistent with the individual concerned. In other words, the IDSP provider will only verify the validity of the documents provided to them; employers must be satisfied that the person who turns up for work is the rightful holder of these documents, and is not an imposter.

Thirdly, whilst some employers may prefer the use of IDSPs, employers cannot force employees to go down the IDSP route. They must ensure alternative options are available where employees do not want to use this option. This will usually involve undertaking a manual check.

Finally, not all employees will be able to use the IDSP route in any event. This option is only available for individuals holding a valid British or Irish passport (including Irish passport cards). This won’t be an option for British nationals who do not hold a passport or where their passport has expired.

What should employers do now in readiness for the changes?

It is imperative that all employers take action now to ensure they are compliant with their right to work obligations from 1 October 2022. As a minimum this will include:

• Considering how they will undertake checks once the COVID-19 adjusted checks come to an end on 30 September 2022;
• Checking their historic practices and processes as well as making sure their current policies and procedures are up to date and reflect the changes;
• Updating their offer letters and contractual documents to reflect these (and future) changes;
• Providing appropriate training and guidance to their onboarding staff on how to use IDSPs (if you will be using them) and how the check can be used to establish right to work in the UK; and
• Keeping up to date with future changes to right to work checks.

If you would like advice or support on any of these issues, or help with making sure you are compliant, please get in touch with a member of the Business Immigration Team.