Digitisation of Right to Work Checks – an update

Further to our last Immigration update (25 January 2022), the Home Office has released further guidance on upcoming changes to right to work (‘RTW’) checks. Under the current process, only the following methods are valid RTW checks:

• Online RTW checks via the gov.uk website. These are only available to individuals with a Biometric Residence Permit (BRP), Biometric Residence Card (BRC) or those with EU Settlement status.
• In-person RTW checks which can be carried out on any individual. The employer must inspect a specified original document and certify that a physical inspection has been undertaken.
• Temporary adjusted RTW checks.  This concessionary arrangement allows employers to carry out a “virtual” RTW check over video call to certify an original document.

Further guidance about the above methods is available here. However, employers need to be aware of important changes to be introduced from 6 April 2022, which are detailed below:

Manual RTW check changes

The Home Office will be limiting manual RTW checks to certain documents. The list of acceptable documents will exclude:

• Current/expired passports showing the person named in the passport as the child of the holder is a British/CUKC with right of abode;
• Current documentation issued by the Home Office to family members of an EEA/Swiss citizen showing that the holder is permitted to stay indefinitely or for a limited period;
• BRPs with an indefinite or limited leave to remain; and
• Frontier worker permits.

Employers will continue to be able to conduct adjusted ‘virtual’ RTW checks past 6 April 2022. This was a concessionary measure introduced because of COVID, but it has been extended through to 30 Sep 2022 in recognition of the logistical challenge that would arise from implementing process digitisation concurrently with a full return to manual checking for some documents.

New Identity Document Validation Technology (IDVT) for RTW checks

The use of IDVT software will allow employers to delegate the digital identity verification element of the check to an Identity Service Provider (IDSP). However, at this stage it can only be used to check valid British/Irish passports and Irish passport cards, and the responsibility and liability for the RTW check remains with the employer.
It will therefore not be possible for manual RTW checks to be eliminated altogether unless the scope of IDVT is expanded.

The IDSP acts on behalf of the employer to carry out a digital identity verification and provide a copy of the document check and the IDVT identity check in an unalterable format.  The employer is required to undertake their own due diligence to be satisfied that the check was completed correctly, and they must address any discrepancies. The RTW documentation/information must be kept securely throughout an employee’s term of employment and for 2 years post-termination.

Employers are encouraged to use an IDSP certified by the Home Office – a list of these providers will be published in due course. Further clarification is needed on IDSP costs, but we understand that the providers’ fees range from £2 to £90 depending on the provider used and the number of checks required by the employer.

Online RTW Check

From 6 April all UK employers must conduct an online RTW check when onboarding or checking RTW status of employees who hold the following documents:

• Biometric Residence Permit (BRP) – issued to individuals holding a visa of six months or more;
• Biometric Residence Cards (BRC) – issued to non-EEA family members of an EEA citizens;
• Frontier Worker Permit (FWP); and
• E visas

The extension of ‘adjusted’ RTW checks to 30 September 2022 does not apply to RTW checks on BRC, BRP and FWP holders. It is mandatory for all new checks to be done using the online system.

The online RTW check involves these steps:

• Individual accesses ‘prove your RTW to an employer’ and generates a share code
• The employer then checks that the share code starts with a letter ‘W’
• The employer accesses details through “view a job applicant’s RTW details” using the share code and the applicant’s date of birth;
• The employer checks the individual matches the person in generated photo (which can be done via video call) and that they can do the work; and
• Finally, the profile page is retained for the duration of employment and then for 2 years post termination.

The change only applies to checks performed from 6 April – it is not necessary for employers to conduct retrospective online checks on employees with BRPs, BRCs or FWPs who were onboarded before that date.

Comment

Increased digitisation will help support employers by streamlining the checking process and providing instantaneous results. However, employers need to be aware of the risk of errors occurring because of the multiple changes to the RTW process. They need to be conversant with these changes and should not be over reliant on the third parties conducting checks on their behalf. Since the liability for RTW checks remains with the employer it is important for employers to brief staff on these changes in advance of the 6 April timeline. If you would like any further advice on these changes, please refer to the gov.uk website or contact [email protected].