Right to work checks: the extension of adjusted remote checks and the push towards further digitalisation from 6 April 2022

1st April 2022

Right to work checks have changed dramatically over the last couple of years, with further changes due to be implemented on 6 April 2022. An overview of the current rules and imminent changes, along with practical advice for employers, is detailed below.

Background

All employers have a legal obligation to prevent illegal working; in order to comply, employers are required to carry out “right to work” checks on all employees prior to their employment, to ensure that the individual is not disqualified from carrying out the work in question by reason of their immigration status.

Failure to carry out checks in the prescribed manner can lead to both civil penalties (up to £20,000 per worker) and potentially criminal liability in some circumstances, if it transpires that the employer has in fact engaged an illegal worker. However, employers who carry out and keep records of their right to work checks in accordance with Home Office guidance are protected from civil penalties by means of a statutory excuse.

How has the process changed since Brexit?

Prior to Brexit, EEA and Swiss nationals were able to simply provide their passports or national ID cards to demonstrate their right to work in the UK in the same way as British nationals. Now, as a result of Brexit, the same right to work checks must be made against EEA nationals (except Irish nationals) as for other overseas nationals. Although there was an initial grace period during which EEA and Swiss passports were still acceptable evidence of right to work, since 1 July 2021, employers have been required to see evidence of the immigration status of new EEA and Swiss recruits, which in the majority of cases will be evidence of their status under the EU Settlement Scheme (EUSS). There is no requirement on employers to check the EUSS status of EEA and Swiss nationals already in their employment before the 1 July 2021 changes came into effect.

How has the Covid-19 pandemic impacted the process?

Historically, right to work checks have predominantly been carried out manually, involving employers checking the individual’s original documents in their physical presence. However, since April 2018, online checks have been optional for non-British/ Irish citizens with an online immigration status or in possession of a biometric residence permit/card.

The requirement to work from home where possible during the pandemic, initially introduced during the first lockdown, made manual right to work checks impractical. To overcome this, the government introduced an adjusted right to work checking process which permits employers to check scanned copies of right to work documents (which are included in Lists A, B1 or B2 of the Home Office Checklist) via a video call with the individual, instead of checking original documents in their physical presence. Further information can be found in our previous article here. These adjusted right to work checks were due to expire last summer, as discussed in another of our earlier publications, but have since been extended to April 2022, and most recently to 30 September 2022.

This means employers can currently complete right to work checks remotely in three ways:

• by carrying out a manual check of original right to work documents in the presence of the employee or an adjusted check of scanned copies of right to work documents via a video call with the employee;

• via the right to work checking service, where the individual has leave to remain either under the Home Office Immigration Rules or under the EUSS, provided they give the employer a share code to view their details; and

• via the Home Office Employer Checking Service, where the individual has a pending application or cannot provide the required documents, which allows an employer to obtain a Positive Verification Notice and a statutory excuse limited to a six month period.

What other changes should employers be aware of?

The government has recently announced further changes which are intended to advance the digitalisation of the right to work checking process. From 6 April 2022, employers will:

• no longer be able to carry out a manual right to work check on those who hold a biometric residence permit, biometric residence card or a frontier worker permit (biometric card holders); in these instances, online checks must be carried out in order for the employer to obtain a statutory excuse; and

• be able to work with certified digital identity service providers (IDSPs) to utilise identity document validation technology (IDVT) to carry out digital identity checks in relation to British and Irish citizens who hold a valid passport. This is the first time that employers will be able to outsource their right to work checks and still benefit from a statutory excuse.

What practical steps should employers be taking to prepare for these changes?

Outsourcing to IDSPs

• Outsourcing checks on British and Irish citizens to IDSPs using IDVT may provide tangible benefits to employers. For example, the Home Office hopes that it will help to “accelerate the recruitment and onboarding process, improve employee mobility and enhance the security and integrity of the checks.” However, these benefits should be weighed against the potential costs, as some reports suggest fees could range from a few pounds to up to £70 per check depending on the IDVT in question. In light of these costs, employers may wish to continue using the adjusted right to work checks up until their expiry on 30 September 2022 and then revert to checks of original documents at that point. Although it will still be possible to use video calls rather than in person meetings to verify identity, from 1 October 2022 it will be necessary for the employer to be in possession of the original documents which may be a practical challenge to businesses adopting remote or hybrid working practices.

• Employers who decide to engage IDSPs ought to consider using a certified provider, details of which are still awaited but which will appear here. While this is not mandatory, it will provide assurance that the IDSP meets the guidance and standards necessary.

• Further, training should be provided to staff on what information they must obtain from an IDSP to confirm verification of identity, what the information can be used for, and what other requirements they still need to fulfil to establish eligibility to work. For example, employers must still carry out their own due diligence to satisfy themselves that their chosen IDSP has completed the check correctly and in the prescribed manner; and employers will not have a legal defence to illegal working where it is reasonably apparent that the identity checked by the IDSP differs from the identity of the actual prospective employee.

• Employers looking to engage IDSPs may want to spend time between now and 30 September 2022 (when the remote checking process is due to end) finding a suitable provider and entering into appropriate commercial arrangements with them.

Internal training and policies

• It is advisable that individuals carrying out right to work checks are provided with updated training, to ensure they understand how to comply with the incoming rules in April and October 2022.

• Employers’ policies and procedures may also now be out of date and should be updated in line with the recent amendments.

• Employers should also consider the recently published Code of Practice on avoiding unlawful discrimination while preventing illegal working, which will be in force from 6 April 2022 and which highlights the other potential consequences of non-compliant policies and procedures.

Conducting an audit

• Employers considering applying to the Home Office for a sponsor licence will need to ensure current and historic compliance with right to work requirements, as the Home Office may complete an unannounced compliance visit before or after a licence has been granted.

• An audit is a useful method for identifying compliance issues, and can save businesses significant time and money in the long run in the event that there are employees in the workforce without the correct permissions to work.

Further clarification on the impact of these changes for employers can be found in the recently published draft guidance on right to work checks.

How we can help

The Walker Morris Business Immigration team is available to assist with any queries you may have in light of the recent or upcoming changes to right to work checks. If you require assistance on any of the issues raised in this article, please contact Shabana Muneer.