You’re Joking – Not Another One! Further Changes to the Right to Work check process

We have commented before that, in the past year, there have been a large number of changes to the Right to Work (“RTW”) check process.  Much of this has been driven by the enforced move to remote and hybrid working caused by the pandemic.

As a reminder, RTW checks must be undertaken by employers on:

• all new employees before they start work; and
• all existing employees who have a time limited permission to remain in the UK before this permission expires.

Failure to comply with RTW rules may result in the employer being charged with either a civil or a criminal penalty.

Covid-19 adjustment

At present, under the Covid-19 adjustment, employers may check someone’s RTW either:

1. remotely, by comparing an electronic or paper copy of the individual’s documents with the originals that the individual holds up whilst the employer is on a video call with them. The employer must record the date the check is made and mark it as “adjusted check undertaken on [insert date] due to COVID-19″; or
2. with the individual’s permission, using the on-line RTW service if the individual has one of the following:

1. • Biometric Residence Permit (“BRP”); or,
   • Biometric Residence Card (“BRC”); or,
   • status under either the EU Settlement Scheme or the Points Based System.

Changes from 6 April 2022

As of 6 April 2022, employers will no longer be able to carry out a RTW check on the basis of seeing an original, or a copy, of a BRP, BRC or frontier work permit.  Employers must instead use the on-line RTW service for individuals who hold these documents.

On 17 January 2022, the Home Office published a new Appendix F to the Employer Right to Work Checks Supporting Guidance, which provides some limited information for employers regarding using the new digital identity verification process to undertake RTW checks on those who hold British or Irish passports:

An employer’s guide to right to work checks (publishing.service.gov.uk)

Identity Document Validation Technology

The government intends to implement an Identity Document Validation Technology (“IDVT”), which Identity Service Providers (“IDSPs”) will be able to use to verify an individual’s immigration status on behalf of employers and landlords.

This is part of the Home Office’s plan to digitise the immigration and border control process as much as possible in the next few years.

The plan is that, from 6 April 2022, employers will be able to use the new IDVT to undertake the RTW check on individuals holding a British or Irish passport.

At present, there is very little information regarding how the digital process will work.  It is anticipated that there will be a fee charged for each check, which will be levied by the IDSP, which could reportedly range anywhere from £1.45 to £70 per check, depending on the level of service provided by the IDSP.

If an employer has undertaken a compliant RTW check on or before 5 April 2022, they will not have to undertake any retrospective checks once the new process comes in.

Biometric Residence Permits’ validity

Due to further changes that the Home Office intends to make in 2024, since 2021, BRPs have not been issued with a validity period beyond 31 December 2024.  Therefore, if an employer undertakes a RTW check on the basis of seeing the original, or a copy, of the BRP, a further RTW check may have to be completed under the process in place in December 2024.

To avoid having to make an early second check on affected employees, we advise that employers use the online RTW service where possible.  This will evidence, in a way that meets compliance requirements, that an individual, who has immigration permission which expires after 31 December 2024, has the RTW to that later date.

The process is as follow:

1. once the individual has their BRP and passport, they should go online to complete the form here: Prove your right to work to an employer – GOV.UK (www.gov.uk);

2. this will generate a share code, valid for 30 days only, which the individuals will need to provide to the employer to enable them to view the RTW through this site: View a job applicant’s right to work details – GOV.UK (www.gov.uk);

3. on completion, this will generate confirmation of individual’s RTW status. Employers should check that the photograph and details match the individual.  At present, this can be done by video call but employers may have to check the details in the individual’s physical presence from 6 April 2022;

4. if the details match, the page should be downloaded and saved to evidence compliance by the employer.

Employers need to be aware that the current online service cannot be used to verify the RTW of British or Irish citizens.

Conclusion

This new process is being introduced following feedback from employers that they found the Covid-19 adjusted RTW check process user-friendly and were keen not to revert to the old manual process in light of the move to more employees undertaking remote or hybrid working.

However, the sceptical are not convinced that the Home Office will have the IDVT fully operational by 6 April 2022.  Indeed, IDSPs could not apply for certification to be a licensed service provider until last month.

Currently, there are no plans for the Home Office to allow the current Covid-19-adjusted RTW process to run in tandem with the new process, in case there are any teething problems.  However, as we approach 6 April 2022, I would not be surprised if we end up writing yet another blog post confirming the extension of the Covid-19-adjusted RTW check process until such time as the IDVT process is properly bedded in.

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