Right to Work

Changes to the Right to Work Checks

The Home Office has confirmed there will be an extension of the Covid arrangements for the Right to Work checks, which will now continue until 30 September 2022. But what are the changes to the Right to Work checks and what do employers need to be aware of?

How are Right to Work checks carried out?

Pre-Covid, Right to Work checks were carried out in two ways – manual and online. Previously, manual checks had to be made in person with the employee, which required certain documents. Online checks for overseas workers involved the checking of an employee’s immigration status through the Home Office system. A share code would need to be generated for the employer when verifying the employee’s right to work in the UK.

During Covid, special arrangements for Right to Work checks were brought into force. A ‘virtual’ check enabled employers to use scanned copies of documents or to carry out a manual check via a video call. This temporary measure was due to finish, along with manual checks, but will now run until the end of September. The reasoning behind this extension is to give employers more time to adapt to the new way of carrying out Right to Work checks.

Changes to immigration checks

Since 6 April 2022, there have been changes to how the Right to Work checks should be carried out, which includes all employees and workers, including British nationals. From 1 October 2022, new regulations state that only online Right to Work checks will be accepted for non-UK or Irish workers, unless it is not possible to carry out checks in this way. There may be some people who do not have an immigration status which can be checked online.

Workers issued with an eVisa can only use the Home Office online service to prove their right to work in the UK. If a worker holds a Biometric Residence Permit (BRP), Biometric Residence Card (BRC) or a Frontier Worker Permit (FWP), their right-to-work status has to be checked using the online service. As an employer, you are not allowed to manually check a physical BRP, BRC or FWP as a worker’s proof of their right to work. The List A  and B have been updated and can be viewed here.   

Employment checks for British nationals

As online checks do not work for British and Irish nationals because they do not have an immigration record, the Home Office has introduced a new digital checking system. Using Identification Validation Technology (IDVT), employees who are British or Irish nationals will still submit images of their personal documents, but they will not need to supply originals. This approach should help to bridge the gap between manual checks and online checks.

The new IDVT digital system for checking British and Irish nationals requires employers to use an Identity Services Provider (IDSP). A list of accredited providers is still being created and will be available on the Home Office website. The IDSP will ask the worker to upload evidence of their right to work, for example, a copy of their passport, which will be verified, and the business will be notified. It’s recommended to use an accredited IDSP to avoid any third-party issues.

Penalties for non-compliance

As a result of the new IDVT system, it is thought that the average cost of a Right to Work check could rise to £75, although this is not confirmed at this stage. If an employer fails to carry out Right to Work checks, they could face a civil penalty. If they are found to be employing illegal workers, they could face fines of £20,000 per illegal worker or even imprisonment in certain cases. The Digital Identity and Attributes Trust Framework is currently being developed to support the new IDVT system.

When any employer carries out Right to Work checks, they will be gathering personal data. There are rules around the retention of data in relation to ID checks, including fines for non-compliance. As an employer, it’s your responsibility to make sure that Right to Work checks are carried out correctly, even if you are using a third party to do these on your behalf.

For more detailed guidance on Right to Work checks and the required documents to prove a worker’s right-to-work status, please go to the Gov.uk website.

If you would like further guidance on Right to Work checks or any other HR issue, please call Tarnya on 07986 544 694.