What is a right to work check?
A right to work check is a legal requirement for employers to verify the lawful immigration status of all job applicants (and in some cases, existing employees – see below) before an offer of employment can be made. Failure to do so may result in the employer being liable for a civil penalty of up to £20,000 for each employee who is working illegally in the UK. In some instances, there are also criminal offences and sanctions. Where employers are also sponsor licence holders, they risk downgrading/revocation of the sponsor licence, in cases of illegal working.
Right to work checks are required for all British and Irish nationals as well as EEA and non-EEA nationals prior to commencing employment and, for anyone with time-limited permission to work in the UK, follow-up checks must be undertaken prior to their visas expiring.
How to conduct a right to work check
Currently, it is mandatory for employers to use the Home Office online checking service (View a job applicant’s right to work details) to check the right to work for Biometric Residence Permits (BRP), Biometric Residence Cards (BRC) or Frontier Worker Permits (FWP) holders. For those without these cards, manual checks following the Home Office guidance are still accepted.
For British/Irish nationals, employers can use IDSPs (see below) or conduct “manual” right to work checks by requesting and then viewing, taking copies of, and verifying the validity of their original, physical (or scanned copies are permitted until 1 October 2022 under the “adjusted procedures” introduced due to the covid-19 pandemic) British/Irish passports or Irish passport cards and cross-checking the appearance of the document holder either in person or via video call.
However, the success of the digitisation of right to work checks (using the online right to work check service) for many migrants (see above) and the prominence of home working prompted by the covid-19 pandemic, has led to the Home Office seeking to digitise right to work checks for British and Irish nationals too.
What is changing?
From 1 October 2022:
- the Home Office online checking service will still be mandatory for Biometric Residence Permits (BRP), Biometric Residence Cards (BRC) or Frontier Worker Permits (FWP) holders.
- to establish the right to work of British/Irish nationals, employers must either: a) revert to the previous (cumbersome) “manual” right to work checks of original, physical identity documents outlined above (it will no longer be permissible to rely on scanned copy documents) and verify these against the appearance of the individual either in person or via video call, or b) they must conduct a digital check visa an Identity Service Provider (IDSP) using Identity Document Validation Technology (IDVT). The latter, new digitised approach will be better suited for the modern workforce, with homeworking more common, and for businesses that operate across several offices.
After all digital ID checks (in-date British/Irish or eVisa), an employer must confirm the candidate’s identity either via video call or in person after the check and before employment commences.
IDVT verifies the identity of a person by analysing a digital copy of a physical document relating to that person and identifying whether that person is the rightful holder of the document. To rely on this technology, the individual must upload a digital copy of either a valid (i.e. current/not expired):
- British passports
- Irish passports
- Irish passport cards
Employers will be encouraged (though it will not be mandatory) to use a Home Office accredited IDSP. However, even where the IDSP is accredited, employers must note that the responsibility for conducting and recording right to work checks accurately still falls on the employer (see below). Employers will also be advised to provide appropriate training and guidance to their staff for example, on what information they must obtain from an IDSP to confirm verification of identity, what the information can be used for, and the additional steps they must take to establish eligibility to work (e.g. where there is a difference in the individual’s name across the documentation).
The Home Office has indicated what information must be compiled, checked and then stored by the employer as part of a right to work check using an IDSP which includes, name, DOB, nationality, copy of the document, copy of the photo of the original, who undertook the check and the Good Practice Guide 45 (GPG45) profile (which requires the IDSP to follow a five-part process known as “identity checking”, following which the IDSP must have at least “medium confidence” in the verification of the identity).
Can the employer fully delegate responsibilities to the IDSP?
No. As well as requiring the employer to ensure that the IDSP carried out the check correctly and to obtain and retain specific evidence of the check (see above), the Home Office guidance states that the employer 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.
- satisfy themselves that the photograph and biographic details (for example, date of birth) on the output from the IDVT identity 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).
- where names differ between documents, the employer must establish why this is the case and must not employ that individual unless they are satisfied that the documents relate to them. A statutory excuse will not be obtained where it is reasonably apparent that the prospective employee is not the individual linked to the identity which was verified by the IDSP.
This documentation/information must be retained securely by the employers for the duration of employment and for a further two years after the employment has ended. The copy must then be securely destroyed.”
How can we help?
Abbiss Cadres LLP offers UK immigration compliance training and consultations to employers including on right to work check compliance as well as on sponsor duties for employers who are also registered sponsors in the UK. Arrange a meeting with one of our experts to discuss your business needs and how we can help.