UK employers are generally aware of the need to carry out prescribed checks to ensure their employees have the right to work, and the consequences of illegal employment (civil penalty of £20,000, risk to sponsor licence or, in extreme cases, criminal prosecution). But the way in which the Home Office says these checks must be done is complex (its employer guidance runs to 67 pages) and continues to evolve.
The next significant change is the anticipated removal of a Covid-related concession which has allowed employers to do checks on right to work documents remotely via a video call without seeing originals. From 1 October 2022, employers must revert to carrying out ‘manual’ in-person checks on original documents included under the Home Office’s List A and List B just as they did pre-Covid (although noting that from 6 April 2022, employers must only complete checks for Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) holders using the Home Office’s online right to work service). Alternatively, in the case of candidates with current British and Irish passports, the employer can engage a third-party identity service provider (IDSP) to verify those passports using Identity Document Validation Technology (IDVT) with the employer then completing the right to work check using the IDVT document provided by the IDSP. Many employers are prepared for the end of this Covid-related concession but others are confused, not least because of a few attention-grabbing but misleading headlines. Employers should not be overly alarmed (there is still time to introduce the necessary processes) but it’s important to properly understand what is going to be required and permitted. Here are a few busted myths as a starting point:
- Are we obliged to engage an IDSP by 1 October? No – you only need to engage an IDSP if you are unable carry out manual in-person checks for candidates with current British or Irish passports from that date (for example, they work entirely remotely and cannot present their original passport for checking before they start work). You can engage an IDSP at any point after 1 October if you want to – you just need to make sure that until you do, you have robust processes for manual checks on original current British and Irish passports (just as you would have done before Covid-adjusted checks were introduced in March 2020).
- Does using an IDSP mean that we will no longer need to see original documents for any employees? No – you cannot force a candidate or employee to share their passport details with an IDSP so you should always have the ability to carry out manual checks on original documents as a back-up. In any event, not all documents are eligible for checking by an IDSP – some British/Irish candidates will only have a birth certificate, some will have expired passports and other non-British/Irish candidates will have a valid right to work but in a non-digital form (e.g. an entry clearance visa vignette or indefinite leave to remain in a valid passport). In each case, a manual check on the original document will still be required to obtain a statutory excuse.
- If we engage an IDSP, can we outsource all of our right to work checks to it? No – employers will remain responsible for completing their candidates and employees’ right to work checks. The purpose of an IDSP is simply to verify the authenticity of certain documents (so the employer does not need to see the original), not to advise on immigration status. If you use an IDSP for your British and Irish candidates, you must still have a process in place to satisfy yourself that the photograph and biographic details (for example, date of birth) on the IDVT document provided by the IDSP are consistent with what you see of the individual presenting themselves for work (i.e. that they are not an imposter). If they do not look like the same person, your obligation is to pause the process immediately, even if you have been given the ‘thumbs-up’ by the IDSP. In any event, IDSPs cannot verify all forms of right to work and there are certain virtual checks for which you simply do not need to use an IDSP. For example, as mentioned above, from 6 April 2022, in order to obtain a statutory excuse in relation to a BRP, employers have been required to ask the employee to obtain a share code via www.gov.uk/prove-right-to-work so that the employer can complete a Home Office online check via www.gov.uk/view-right-to-work (this is the same process which has been in place since 2019 for those with status under the EU Settlement Scheme). For these employees, there is no need to see an original permit or passport or even to meet them in person – this means that a material proportion of right to work checks can already be done virtually without the need for an IDSP. The Home Office has also confirmed to us that employees who can evidence their right to work using the online right to work service must present their share code directly to their employer and not via a third party.
- Will failing to complete a digital check lead to a civil penalty or imprisonment (as one article has suggested)? In most cases, no, but completing the correct check is essential. Digital checks will not be permitted in all cases and failing to complete any type of check is not an offence by itself anyway. A civil penalty will only be issued where the employee does not have the right to work and the employer cannot demonstrate that it has a valid statutory excuse by carrying out a check in accordance with the Home Office’s guidance; a criminal offence occurs only where an employee does not have the right to work and their employer knows or has reasonable cause to believe that is the case. That’s why fully understanding your employer obligations, whether in relation to manual or online checks or using an IDSP, and getting proper advice where necessary, is vital.
If you’ve enjoyed these pointers, join us for our webinar UK Business Immigration: Right-to-Work Checks – What Employers Need to Know on 5 October 2022 at 12.30pm BST for a more thorough discussion on the latest changes and the answers to all those other right to work questions you’ve been desperate to know but too afraid to ask.
In the meantime, if you have any other questions relating to UK immigration matters, please contact your usual Squire Patton Boggs business immigration team member or Annabel Mace, partner and Head of UK Immigration.