Right to work checks – the implementation of IDSPs for British and Irish citizens

Introduction

After multiple delays, the Home Office has announced that, from 1 October 2022, right to work checks for British and Irish citizens are changing. With the consequences of non-compliance potentially significant, it is important employers adjust their practices to ensure they get this right.

Background

Pre-COVID, most right to work checks were conducted in person, or with the potential employee posting their relevant documents to the employer. However, in March 2020, after the COVID-19 pandemic made it impossible for right to work checks to take place in person, the government put in place an “adjusted right to work check scheme”, allowing employers to conduct the checks remotely, using scanned documents and video calls. This, however, increased the risk of fraudulent documents, putting employers at risk of hiring individuals without a legal right to work in the UK.

Since the landscape of the workplace has adjusted significantly to remote working, with many employees working remotely full-time or undertaking a “hybrid” working model, digital checks will still be possible, as outlined below.

What's changing?

From 1 October 2022, employers will have two methods of checking employees' right to work documents:

1. Physically – this requires the employer to meet with the employee, check that the documents are genuine, valid and belong to the employee, and then take a signed and dated copy for their records.
2. Online – this requires the employer to appoint a digital identity service provider (IDSP). The IDSP will verify the documents, however, the employer will still need to check the likeness of the individual either face-to-face or via video call.

The IDSP uses identification document verification technology (IDVT) to verify the documents, following the five-step process outlined in the Government Good Practice Guide 45. The IDSP will then check if the document supplied is valid and linked to the identity of the individual for the employer to gain the statutory excuse. It is important to note that if the individual relies on an expired passport/passport card to evidence their right to work, the IDSP cannot verify this document and a physical check must be carried out.

What this means for employers

For employers to continue implementing online right to work checks, they must find an IDSP and implement their technology, which will of course come with a fee. If they do not wish to do so, they must revert to physical checks. Checks do not need to be carried out retrospectively for employees who have already commenced employment with a valid right to work check.

When finding an IDSP, as it stands, there is no requirement to use a certified IDSP, however the Department for Digital, Culture, Media & Sport have set out a list of certified providers here. If the employer chooses to use an IDSP that is not certificated, the employer will need to be satisfied that their chosen provider is capable of providing the required checks.

It is important to remember that, although the IDSPs will be a huge help, the legal responsibility still sits with the employer, and the consequences of getting this wrong can be significant and include fines of up to £20,000 per employee. Further, the IDVT method of right to work checks is very new and the Home Office may change the rules without notice at any time.

Online Right to Work Checks for Migrants with BRPs

It is worth remembering that right to work checks for migrants with BRPs also changed in April 2022. Employers are now only able to use the Home Office’s online checking service (available here) and will no longer be able to conduct a manual check. To read more about this topic, please refer to this article.

For more information or advice, please contact Yuichi Sekine or Jonathan Goldsworthy.