Right to Work checks – what are employers now supposed to be doing?

With the regular changes to the UK Right to Work (“RTW”) checks over the last year or so, employers may be forgiven for having lost track of what the latest requirements are.

As mentioned in our last blog on RTW checks (You’re Joking – Not Another One! Further Changes to the Right to Work check process | The Mobile Workforce), further changes to the process came into effect on 6 April 2022.

Current process as of 6 April 2022

Prior to an employee commencing work in the UK, an employer must undertake the RTW check through one of the following:

1. a manual RTW check;
2. using the services of an Identity Document Service Provider (“IDSP”) to complete the RTW check;
3. though the Home Office online RTW check website.

For an employer who is used to completing a manual check, please note that the lists of acceptable documents have been changed.  The current lists can be found under Annex A of the Home Office guidance on RTW checks:  An employer’s guide to right to work checks (publishing.service.gov.uk)

The changes will primarily affect employers who have been used to undertaking the manual RTW check on an employee’s Biometric Residence Permit (“BRP”).  As of 6 April 2022, BRPs are no longer on the list of acceptable documents.

Employers who have always undertaken the check on an individual’s BRP must now use the Home Office’s online website to complete the RTW check:

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, now valid for 90 days (it used to be 30 days only), which the individual 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). Please note that the share code must start with a “W”.  If it starts with an “R” or “S”, it was generated for use by landlords or other users and cannot be used by an employer;
3. on completion, this will generate confirmation of the individual’s RTW status. Employers should check that the photograph and details match the individual. This may be carried out either in person or by video call;
4. if the details match the individual, the page should be downloaded and saved to evidence compliance by the employer. This must be saved for the duration of the employee’s employment plus two years afterwards.

If a valid check was completed before 6 April 2022, a retrospective check is not required.

You may have noticed we have mentioned the manual check, discussed the online check but completely skipped over the second option – the use of IDSPs.

Identity Service Providers

IDSPs that are licensed by the Home Office may be instructed by an employer to verify an individual’s RTW.  The IDSP will use an Identity Verification Technology (“IDVT”) to verify an individual’s identity on the basis of a digital copy of a physical document.

It sounds quite straightforward – the employer engages an IDSP, pays the IDSP fee and receives the RTW check evidence.  On 2 March 2022, the Home Office helpfully published information about how the process will work: Digital identity certification for right to work, right to rent and criminal record checks – GOV.UK (www.gov.uk)

Rather handily, there is a section on that page, which states it will be updated with the current list of licensed IDSPs……we are still waiting for this list to appear.

Looking back on our blog of 3 February 2022, we expressed scepticism that the use of IDVT would be fully operational by 6 April 2022.  We even went so far as to end our blog with the prediction that the Covid-19 adjusted check process would be extended.

Extension of Covid-19 adjustment to RTW process – surprise!

Due to the pandemic, with the majority of the country suddenly working from home, the Home Office introduced a concession to the RTW check requirements.  Under the concession, employers are permitted to perform the check on the basis of copy or scanned documents.  Employers would not be required to see the original document under the concession.  This concession was due to on 6 April 2022 but has now been extended to 30 September 2022.

Conclusion

One day, there will be a list of IDSPs available for employers to use.  When that happens, employers should ensure that they do not simply pick one from the list.  We suggest that employers compare their service offerings, timescales and fees before selecting one, or more, that most suit(s) their needs.

In the meantime, we recommend that, where possible, employers use the online checking process.  Unfortunately, until there are licensed IDSPs, manual checks will still have to be carried on some individuals, such as British or Irish passport holders.

We will no doubt be writing another RTW blog with further changes and updates in due course.

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