Right to work checks from 6 April 2022 what employers need to know

There are some notable changes to the way in which right to work checks should be carried out from 6 April 2022.

These stem from the Home Office's push to digitalise checks (which in turn increases security). They will require, at least for the near future, a more considered approach from businesses and we set out below the key points which employers will need to think about.

What is changing?

Checks for all nationals (other than British and Irish nationals)

From 6 April 2022, employers will not be able to accept physical documents when conducting right to work checks for individuals who hold Biometric Residence Permits ("BRP"), Biometric Residence Cards ("BRC") or Frontier Worker Permits ("FWP"). Instead, from 6 April 2022, they will need to use the Home Office's free online service (which was previously optional). The online service is initially accessed by the worker who provides the employer with a "share code" (together with their date of birth) enabling the employer to access (and retain evidence of) the worker's status.

For those who already hold an electronic status under the EU settlement scheme the process for verification of their right to work remains unchanged (and is via the Home Office free online service).

For migrant workers who do not hold a BRP, BRC or FWP and have physical documents to evidence their right to work in the UK (for example via a vignette or stamp in their passport), electronic checks will not be possible until such time as their status is renewed (and they are moved to the new electronic system). Employers will need to continue carrying out manual checks for these individuals.

Checks for British and Irish nationals

Over the past two years, the pandemic has resulted in (temporary) remote right to work checks in the workplace, which have proved popular with employers. As a long-term digital solution, from 6 April 2022, the Home Office is introducing Identification Validation Technology ("IDVT") for checks on British and Irish nationals.

If employers choose to use IDVT they will need to do this through an Identity Services Provider ("IDSP"). A list of accredited providers will be available on the Home Office website once a provider is certified by the Home Office, however it will not be mandatory to use an accredited provider.

The IDSP will request that the worker uploads evidence of their right to work (for example a picture of their passport) and will verify this evidence, providing a result to the business. This will incur a fee for employers, the level of which is not yet known albeit the indication is that this may be anywhere from a few pounds up to £75 per check.

Using an IDSP will allow employers to obtain a statutory excuse against civil penalties, provided that:

• the IDSP has carried out the check in line with the Home Office prescribed requirements; and

• the employer is satisfied that the IDVT check matches the worker's details (ie that the photograph and date of birth are consistent with the worker that presents themselves for work).

To be able to rely on the third party check, employers will need to be particularly cautious when using an IDSP who is not accredited by the Home Office. Employers will need to ascertain (and be able to evidence) that the IDSP carries out checks and verifies identity in line with the Home Office's prescribed requirements, failing which a business may be unable to defend against any civil penalties issued (which are up to £20,000 per illegal worker).

A Digital Identity and Attributes Trust Framework is being developed to support the introduction of IDSPs and updated guidance is expected in due course.

What else should employers consider?

The Home Office has published an additional (draft) Code of Practice for employers on avoiding unlawful discrimination while preventing illegal working, which will apply to all employers in England, Scotland, Wales and Northern Ireland from 6 April 2022. The Code is a helpful reminder for employers to ensure they continue to conduct fair recruitment processes and that they are consistent in carrying out right to work checks.

For example, the Code emphasises that employers should not treat a worker less favourably because the individual refuses the new IDVT process (and instead a manual check is required) or that a migrant worker is only able to evidence their status via the online process and cannot produce a hardcopy document.

What about the temporary changes to checks due to Covid?

The Home Office has confirmed that the Covid-19 adjusted right to work (remote) checks have been extended and will now remain in place until 30 September 2022, which will give employers more time to adapt to the new ways of carrying out checks.

Updated right to work guidance, checklists and other information is likely to be published towards the end of March ahead of the changes so please follow up on LinkedIn or check our website for updates.

If you require further advice on the changes to right to work checks, please contact our immigration specialists.