Right to Work Checks – Updates 2023

The UK government recently updated its guidance on right to work checks. This guidance, if implemented correctly, provides a statutory excuse (legal protection) against a civil penalty if found to be unknowingly employing illegal workers in the UK.

The updated guidance contains several changes, including but not limited to the introduction of the IDSP for digital identity verification, clarification on the use of Biometric Residence Permits (BRPs) with an expiry date of 31^st December 2024, and changes to when employers must contact the Home Office’s Employer Checking Service (ECS) to gain legal protection.

COVID-19 temporary adjusted checks

The COVID-19 temporary adjusted checks, introduced on 30^th March 2020 to facilitate remote checks during lockdown, ended on 30^th September 2022. As of 1^st October 2022, employers must carry out one of the prescribed checks (manual check, IDVT check or Home Office online check) prior to an employee’s start date of work, regardless of the employee’s nationality.

The guidance confirms that, so long as the adjusted right to work checks were conducted in accordance with the guidance at the time, retrospective checks will not be required.

Identity Service Providers (IDSPs)

Identity Document Validation Technology (IDVT) refers to technology used to confirm a person's identity. With IDVT, a digital copy of a physical document relating to the person is produced for the purpose of confirming the document's validity and the person's rightful ownership. IDSPs are a provider of identity verification services using IDVT.

From 6^th April 2022, employers have been allowed to use IDSPs to carry out remote digital checks for British and Irish citizens who hold a British/Irish passport or Irish passport card. Ultimately, the responsibility for the check remains with the employer, and they must ensure the IDSP they select to complete the identity verification element of the check carries out a prescribed check prior to the commencement of employment.

Employers will obtain a statutory excuse where they can demonstrate that they have complied with all the statutory requirements to conduct right to work checks. Where they have used an IDSP, the statutory excuse will only be obtained where that IDSP has also complied with the required steps:

1. obtain evidence of the claimed identity
2. check the evidence is genuine or valid
3. check the claimed identity has existed over time
4. check if the claimed identity is at high risk of identity fraud
5. check that the identity belongs to the person who’s claiming it

IDVT checks are invalid if the British or Irish passport/passport card relied upon has expired. To obtain a statutory excuse for an expired British/Irish passport or Irish passport card, the employer must carry out a manual right to work check in the legally prescribed manner.

Biometric Residence Permits (BRPs)

The Home Office is issuing all new BRPs with expiration dates of 31^st December 2024 when the leave to remain is valid beyond this date, as BRPs will no longer be required from 1^st January 2025. The validity of one's leave can easily be verified via the Home Office online right to work service, and the Government should update their information on how to prove your immigration status in early 2024.

Employer Checking Service (ECS)

Individuals extending their permission to stay in the UK and who have made an in-time application, are allowed to continue working in the UK until a decision is reached on their application, even if their initial permission expires in the interim. This is commonly referred to as “3C leave”.

Skilled Worker visa – supplementary employment

Skilled Workers are limited in the additional work they can undertake, with the following conditions attached to any supplementary employment:

1. the job has the same occupation code as the one assigned on the CoS or the job is on the Shortage Occupations List;
2. the job is for no more than 20 hours per week;
3. the individual continues to work for their sponsor; and
4. the supplementary work does not interfere with the job they have been sponsored to do and is carried out outside the contracted working hours.

Employers offering supplementary work to Skilled Worker visa holders must conduct right to work checks to ensure that the individual has the necessary immigration permission to work for them. These checks must be carried out in the prescribed manner and may involve checking original documentation to confirm the individual's right to work in the UK. By conducting these checks, employers can establish a statutory excuse against liability for a civil penalty if it is later discovered that the individual did not have the right to work in the UK.

Employers support

The Home Office is providing training on document fraud for right to work checks, which can be accessed by emailing IE-CAS@homeoffice.gov.uk. This, alongside published Home Office guidance, should help employers review documents with more confidence and conduct right to work checks smoothly.

Here at Clarkslegal, we provide a right to work check verification service to minimise exposure to risk, please get in touch with our UK Immigration Team should you require further help.