More changes to the right to work checks – are your processes up to date?

Making sure your right work checks are in line with the current requirements of the Home Office is essential for obtaining the statutory excuse to avoid a civil penalty, if it is found that someone is working for you illegally.

Over the past few years, we have seen various changes to the requirements for compliant right to work checks and the documents that can be accepted as part of that process. This year, we have seen further changes; so, what’s the current position?

On 30 September, the Covid-19 temporary adjusted right to work checks, which allowed employers to undertake right to work checks remotely by accepting scanned documents and verifying those documents using video calls, came to an end. It is therefore no longer acceptable for employers to undertake right to work checks in this way.

As of 1 October 2022, businesses recruiting new employees or employees whose time limited right to work expires on or after this date need to ensure that right to work checks are in line with the following requirements:

Manual checks

Employers need to revert to the manual right to work check process that was undertaken prior to the pandemic, by checking an original document from the Home Office’s acceptable documents list, in the presence of the individual. It is then necessary to copy and retain the document in according with the Home Office Right to Work Guidance. The list of acceptable documents has changed, for example to remove the ability for manual checks of certain documents, such as Biometric Residence Permits (BRPs), to be undertaken (see below). It is therefore important to check the Home Office Guidance regularly to ensure that the documents being checked are still accepted.

Online checks via the Home Office online checking service.

Online checks can now be made for various right to work statuses via the Home Office online checking service., Employers will need to ask individuals for their date of birth and their right to work share code. This information is then inputted online to confirm the employee’s right to work and when such right expires, where applicable. In the same way as manual checks, the online check must be undertaken before the individual’s employment starts and, where the individual has a time limited right to work, a further right to work check must be made before their leave ends. Employers will therefore need to ensure that they obtain the information needed from individuals to enable them to undertake the online right to work check in good time.

It is important to note that, since 6 April 2022, where a non-British national holds either a BRP, biometric residence card (BRC) or a frontier worker permit (FWP), only online checks will be acceptable. A manual check of these documents will not be sufficient to obtain the statutory excuse.

Checks using the services of an identification service provider (“IDSP”)

Identity document validation technology (IDVT) is the digital tool that the Home Office has made available to enable employers to verify identification electronically, given that the COVID-19 relaxed right to work check processes were so well received by businesses. IDVT allows those that cannot use the existing online right to work checks, via the Home Office online checking service, such as British and Irish citizens, to upload copies of their right to work documents remotely. The documents are then analysed to check authenticity and to verify the individual’s identity. The use of IDVT is not compulsory, but if employers do intend to use IDVT, a certified IDSP will need to be used in order to establish a statutory excuse. IDVT will not be suitable for all right to work check documents, and in those circumstances manual checks and/or online checks via the Home Office checking service will still need to be made.

Employers should ensure that staff who are responsible for undertaking right to work checks are fully updated about the new rules, that they continue to check the UKVI guidance, and that the documents provided by individuals are on the accepted document list.