When the pandemic first hit in March 2020 the Home Office was quick off the mark in allowing employers to conduct right to work checks remotely. Rather than having to meet job applicants and employees needing to renew their status in person, they were able to do so via a video call.

After numerous extensions, this flexible way of conducting checks will finally come to an end on 30 September 2022. From 1 October, employers will need to conduct a check in one of the following ways:

• an in-person manual check using original documents;
• via the Home Office’s online checking service; or
• via an Identification Document Validation Technology (“IDVT”) identity check.

Why should employers perform right to work checks?

First of all, it’s always important to remember why having robust right to work checks is critical. Employers can face penalties of up to £20,000 if the Home Office discovers they are employing people who do not have the right to work in the UK. If the employer knows, or ought to know, that the individual does not have permission to work, they can also face criminal sanctions. 

By conducting a right to work check that fully meets the Home Office’s requirements, which are set out here, employers obtain a statutory excuse. This is basically an insurance policy that will enable the employer to defend themselves if it turns out that the individual produced, for example, a very good fake document during the right to work checking process. 

It’s free to conduct right to work checks, unless the employer opts to use the new IDVT process (more on that below). It’s therefore advisable that employers conduct new checks before the employment commences on all potential job applicants and repeat checks on existing employees who have limited permission to stay in the United Kingdom. Documentation demonstrating that valid right to work checks have been performed should be kept securely for the duration of the individual’s employment, and two years afterwards.

How to conduct a manual check

Most employers are likely to perform manual right to work checks unless they must conduct an online check (see below).

The Home Office’s guidance contains full information on exactly how to perform manual checks. The basic process is:

• meet the individual in person;
• check the original evidence of their right to work;
• keep a copy.  

The documents that can be accepted by an employer to obtain a statutory excuse are set out in Lists A & B of the guidance. Documents will vary depending on the individual’s circumstances but can include a things like a passport or certificates of naturalisation or registration as a British citizen.

When must an online check be performed?

Since 6 April 2022, employers have had to perform an online check where the individual holds a Biometric Residence Card (BRC), a Biometric Residence Permit (BRP) or a Frontier Worker Permit (FWP).

Employers simply need to ask their employees to provide them with a share code and then follow the steps to generate the right to work check online. Employers should check the details presented on the profile page generated, including the photograph. And then save a copy to document that the check was completed. 

Conducting checks on these documents in person or remotely since 6 April means that a statutory excuse cannot be obtained. 

When to use the Employer’s Checking Service?

Employers must use the Home Office’s Employer Checking Service (“ECS”) to establish a statutory excuse in a number of circumstances.

The service can be used when an employer is presented with a document confirming the receipt of an application to the EU Settlement Scheme. The document can be a non-digital Certificate of Application or an acknowledgement letter or email. It can relate to an application received at any time, regardless of the respective deadlines for the EU Settlement Scheme. The service should also be used where a check of a digital Certificate of Application has been completed online, but they are subsequently directed to the Employer Checking Service. This may be the case for some applications to the EU Settlement Scheme received on or after 1 July 2021.

For individuals that have claimed asylum, the service should be used where the employer is presented with a valid Application Registration Card, and where the card states that they are permitted to undertake the work in question.

In some circumstances, an employer may not be satisfied that they have been provided with acceptable documents for a right to work check. There are two instances where an individual can still prove their status, and the Employer Checking Service should be used to do so. First, where the individual has an outstanding application with the Home Office. The outstanding application should be made before their previous permission to enter or remain in the United Kingdom expired. The individual could also have an appeal or administrative review pending. In these circumstances, they will simply not be able to provide evidence of their right to work in the usual ways. Secondly, where the individual can present other information indicating they are a long-term resident of the United Kingdom who arrived in the country before 1988.

Identification Document Validation Technology (“IDVT”) checks 

On 6 April 2022, legislation was introduced that allows accredited Identity Service Providers (“IDSPs”) to complete the identity verification elements of right to work checks involving British and Irish citizens. 

This means that employers can pay a privately operated and Home Office approved provider to conduct such checks remotely. The Home Office guidance contains detailed information here.  

Because there is a cost involved for each check, it is expected that the average small or medium size employer won’t conduct checks in this way, unless their staff work fully remotely and in-person checks are difficult to perform. 

Take steps now

Employers often find it difficult to implement an effective system to ensure that all right to work checks are performed in time and fully meet the Home Office’s requirements. According to People Management, a recent poll by Xydus (an Identity Service Provider) found that 48 per cent of businesses are unprepared for 1 October 2022 changes. Many will be unaware that checks via video call will no longer establish a statutory excuse.

It is certainly time for those responsible for this important function to bring themselves up to speed with the changes.