Upcoming changes to
Right to Work
checks

22 March 2022

Last week, the Home Office updated the ‘An Employer’s Guide to Right to Work Checks’ guidance to reflect changes in legislation which are due to come into force on 6 April 2022.

Right to work checks are an essential responsibility for all employers, no matter the size of your business. All UK employers are required by law to carry out initial right to work checks on each individual worker they intend to hire, in order to prevent illegal working. Employers can face civil penalties for employing workers who do not have the right to work in the UK, or where the correct right to work checks were not undertaken.

For this reason, employers should take the time to familiarise themselves with their legal obligations regarding right to work checks, and ensure they are aware of the changes coming into effect from 6 April. The updated guidance is available in draft on the GOV.UK website here. Below, we summarise the main changes being introduced and provide a quick refresher on how to carry out a check.

How to conduct a right to work check

There are two types of check that employers may conduct to establish their employee’s right to work:

• A manual check can be completed for UK and Irish citizens, who can use their passport to prove their right to work. You should also complete a manual check for individuals who do not have an immigration status that can be shared with you online.
• An online check is required for individuals who only hold a digital immigration status (an eVisa). This includes most EU citizens with settled or pre-settled status, anyone with a Hong Kong BNO visa, plus some other nationalities who have moved to the UK more recently under the points-based immigration system.

A manual right to work check is conducted in three steps:

• Ask to see the applicant’s original documents.
• Check that the documents are valid with the applicant present.
• Make and keep copies of the documents and record the date you made the check.

To conduct an online right to work check, you will need the applicant’s date of birth and their share code, which they can obtain online. An online check can then be carried out following these three steps:

• Use the Home Office online right to work checking service by visiting https://www.gov.uk/ view-right-to-work.
• Satisfy yourself that any photograph on the online right to work check is of the individual presenting themselves for work.
• Retain and securely store a clear copy of the response provided by the online right to work check.

New digital checks from 6 April

In addition to the manual and online checks outlined above, employers will soon be presented with a third option. From 6 April 2022, employers can make use of new Identity Document Validation Technology (IDVT) via the services of a certified Identity Service Provider (IDSP) to complete the digital identity verification element of right to work checks for British and Irish citizens who hold a valid passport (including Irish passport cards).

Digital identity verification conducted by IDSPs will allow a digital copy of a physical document to be verified for its validity and whether that person is the rightful holder of the document. This will allow checks to be conducted entirely online, making it quicker and more convenient for employers to carry out the necessary checks.

Basic steps for conducting a right to work check using an IDSP are as follows:

• IDSPs can carry out digital identity verification to a range of standards or levels of confidence. The Home Office recommends that employers only accept checks via an IDSP that satisfy a minimum of a Medium Level of Confidence. A list of certified providers will be made available on GOV.UK for you to choose from once certifications have taken place. It is not mandatory for you to use a certified provider; you may use a provider not featured within this list if you are satisfied that they are able to provide the required checks.
• Satisfy yourself that the photograph and biographic details (for example, date of birth) on the output from the IDVT check are consistent with the individual presenting themselves for work (i.e. the information provided by the check relates to the individual and they are not an imposter).
• You must retain a clear copy of the IDVT identity check output for the duration of employment and for two years after the employment has come to an end.

Detailed information on how to complete a right to work check using an IDSP is available in Annex D of the guidance.

Rule changes for biometric cards

The way in which Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) holders evidence their right to work is changing.

From 6 April 2022, BRC, BRP and FWP holders must evidence their right to work using the Home Office online service only. From this date, employers will no longer be able to accept physical cards for the purposes of a right to work check even if it shows a later expiry date. BRCs, BRPs and FWPs have been removed from the lists of acceptable documents used to conduct a manual right to work check.

Changes to the list of acceptable documents

Annex A of the employer’s guidance contains a list of acceptable documents for manual right to work checks. Acceptable documents are categorised into lists depending on the type of permission the holder has. Employers must obtain documents from either List A or List B when performing a manual right to work check.

The updated guidance includes some changes to the list of acceptable documents, as follows:

• The removal of current documents issued by the Home Office to a family member of an EEA or Swiss citizen, which indicated that the holder had permission to stay in the UK
• Amendments to List A and B, group 1 to remove Biometric Immigration Documents (Biometric Residence Permit) issued by the Home Office
• Amendments to List B, group 1 to remove frontier worker permits issued under regulation 8 of the Citizens’ Rights (Frontier Workers)(EU Exit) Regulations 202.
• Addition to List B, group 2 of a Certificate of Application (CoA) digital or non-digital confirming a valid application to the EUSS on or after 1 July 2021 together with a Positive Verification Notice (PVN) from the Employer Checking Service (ECS)
• Amendments to List B, group 2, document no 3 to include an application for leave to enter or remain under Appendix EU to the Isle of Man Immigration Rules and removal of reference to applications submitted on or before 30 June 2021.

Extension to COVID-19 adjusted checks

Following positive feedback on the new digital checks set to be introduced in April, the updated guidance confirms that the adjustments made to right to work checks during COVID-19 are now set to continue until 30 September 2022 (inclusive).

This will ensure employers have sufficient time to develop commercial relationships with Identity Service Providers, make the necessary changes to their pre-employment checking processes and carry out responsible on-boarding of their chosen provider.

Deferring the end date of the adjusted checks to 30 September ensures the Right to Work Scheme continues to operate in a manner which supports employers to implement long-term, post-pandemic working practices. It also provides opportunity for employers to put measures in place to enable face to face document checks if they do not wish to adopt digital checks for British and Irish citizens with a valid passport (or Irish passport card).

Immigration compliance for employers

It is essential for employers to understand their legal obligations regarding right to work checks and other areas of immigration compliance, in order to avoid civil penalties and adverse action being taken against them by the Home Office.

Smith Stone Walters can guide your business through all aspects of immigration compliance, from checking the immigration status of your employees to managing your monitoring and reporting duties as a licensed sponsor of migrant workers.

To find out how we can help your business stay compliant, please contact us today.

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