New right to work checking process

All UK employers have an obligation to take steps to prevent illegal working, with the most important process being to complete right to work checks before employing someone. This ensures the individual has the appropriate immigration status to allow them to complete the job they have applied to do. Employers who complete the necessary checks will have a statutory excuse against liability for a civil penalty, in the event they are found to employ someone who doesn’t have the right to work in the UK.

In February 2022, the Home Office published a Code of Practice to ensure employers don’t unlawfully discriminate when complying with their duty to prevent illegal working. The Code recognises that discrimination can occur in many different ways but focused on the subject of avoiding race discrimination, as this is the main issue employees face when being asked of their right to work. The Code outlines employers should be consistent in how checks are completed and make sure job offers are made based on the person’s capabilities, not their race or other protected characteristics. Employers should check the status of all prospective employees; making assumptions about an applicant’s right to work based on their colour, ethnic or national origin, accent, surname or length of time they have been resident in the UK could amount to race discrimination claims.

From 6 April 2022, the process for completing right to work checks is changing. Biometric residence cards (BRC), biometric residence permits (BRP), and frontier worker permits (FWP) will only be checkable through the Home Office’s online checking service. Previously, these checks could be completed manually but hard copies of the documents won’t be acceptable past this date. The List A and B of acceptable documents for manual checks will be updated to reflect this change; employers should ensure they are aware of the new lists are and adhere to them.

The government introduced temporary adjusted checks for ID documents during the Covid pandemic, to eliminate the need for in-person checks. This has been available since March 2020, to allow employers to screen and onboard new employees whilst minimising exposure to the virus. The Home Office said that, following positive feedback and review of the benefits, it wants to continue to support the increased numbers of remote workforces with permanent digital checks.

As such, whilst identity checks for UK and Irish citizens can continue to be completed manually (e.g. obtain, scan and store a physical copy of an employee’s passport), a new technology will be available from 6 April 2022. The temporary Coronavirus adjusted checks can continue until 30 September 2022, after which is it expected the permanent identification document validation technology (IDVT) will replace them.

Using IDVT, applicants can upload images of their passport via a certified Identity Service Provider (IDSP) to verify their identity remotely and prove their eligibility to work in the UK. Whilst it will not be mandatory for employers to use a certified IDSP for the purposes of right to work checks, the Home Office recommends they do so. This will provide assurance that their chosen IDSP meets relevant scheme guidance and the standards set out in the trust framework, which means an employer can reduce risk by recruiting in a safer way, as they are able to assure prospective employees’ identities and eligibility using consistent and more secure methods.

Employers will retain obligations that they must comply with under the Schemes, including to satisfy themselves that the IDSP has carried out an identity check on the employee and to retain copies of the check. If an employer finds that the name differs between the documents, then it must establish why this is the case and must not employ that individual unless the employer is satisfied that the documents relate to them.

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