A number of important changes affecting how employers undertake right to work checks are coming into force with effect from 6 April 2022.
In this blog we look at how this will impact on employers, including the recently announced further extension of the Covid-adjusted right to work checks.
Extension of the Covid-adjusted Right to Work checks
Initially planned to be a temporary measure to assist businesses facing the challenges of recruiting during the pandemic, adjusted right to work checks were introduced in March 2020 when face to face checking of right to work documentation was unable to occur in many cases.
As discussed in more detail in our previous article here, under the temporary measures, employers have been able to conduct virtual right to work checks and establish a statutory excuse against any illegal working penalty without physically seeing the individual (or their ID documents) in person.
From 30 March 2020, employers have been able to:
- ask workers and job applicants to submit a scanned copy or a photo of their original documents via email or using a mobile app; and
- arrange a video call with the worker so that they can show the prospective employer their original documents on camera whilst they check them against the digital copy. The employer must then retain a copy that records the date and is marked as being an adjusted check in line with the required wording; or
- use the online right to work checking service while doing a video call to verify the applicant’s identity.
The temporary measures were initially expected to end on 21 June 2021, before being extended to 31 August 2021 and again to 5 April 2022. In a surprise announcement by the Government on 22 February 2022, the validity of the adjusted checks has now been extended yet again to 30 September 2022.
Digital Identity Checks
From 6 April 2022, the right to work checks are changing to that employers will be able to check a job applicant’s right to work status by:
- Undertaking a Covid-adjusted check (as set out above – but only until 30 September 2022);
- Checking an applicant’s original documents manually in-person (in line with the “traditional” approach); or
- Checking an applicant’s right to work online.
There are two separate ways in which online right to work checks can be completed.
Firstly, an organisation can use the Home Office online checking service; however, this is only available for a minority of prospective recruits (including those who hold Biometric Residence Permits or Settled/Pre-Settled Status under the EU Settlement Scheme). Importantly, this option is not available for UK nationals.
Secondly, from 6 April 2022, an employer will also be able to check an applicant’s right to work online using the new digital identity checking service.
New digital checks will enable applicants to submit images of their personal documents using Identification Document Validation Technology (IDVT), instead of providing a photograph or a copy of the document. The IDVT system will verify a worker’s identity remotely. The same process is also being implemented for Disclosure and Barring Service (DBS) pre-employment checks.
It is important to note however that employers themselves cannot use the IDVT system directly. Instead, they will need to use certified Identity Service Providers (IDSPs) to carry out digital identity checks on their behalf.
The current Guidance clearly states that employers remain liable for the checks being undertaken properly even when using IDSPs. They remain liable for undertaking their own due diligence and must “carry out a risk assessment for every transaction”. It also looks as if employers will need to understand whether the digitally verified documents permit the individual to undertake the work being offered to them and/or whether there are any restrictions on what they can do based on their immigration status. As such, this may not be quite the outsourced solution some employers have been hoping for.
Further guidance is currently awaited from the Government as to how these checks will be carried out and the processes that employers should follow, however, organisations should start to think about whether the new system is something that would be of use to them going forward (particularly when the Covid-adjusted checks end in the autumn).
The Government website states that the new system will make it “quicker, safer and more convenient” for employers to carry out right to work checks and that the time spent by organisations in checking their employees right to work documentation will be “slashed”. However, some employers have already expressed concerns about the potential costs associated with the new system.
Costs
Although the new measures have the potential to be an innovative and time-saving way to conduct right to work checks, the reality is that using an IDSP could turn out to be an expensive alternative to the methods already available to employers.
Although the exact costs of the digital system are yet to be confirmed, it has been claimed that these costs could vary from £1.45 to £70 per check with the costs being passed on to the employer.
For organisations with a small number of employees and a low turnover, these costs may be low and proportionate - assuming a minimal number of checks being conducted each year. But, smaller organisations are likely to have a smaller budget to absorb any costs. In addition, they will not benefit from economies of scale, so the costs for smaller organisations may be higher per check than the costs for large organisations.
On the other hand, for larger organisations with a high number of employees and an increased number of checks to be conducted each year, or for recruitment companies who potentially place significant numbers of temporary workers per day, the cost of using this new system could quickly add up and become completely unaffordable.
The cost associated with the checks is clearly a huge potential issue; if the costs are too great organisations may prefer to rely on the “old school” manual check, which does not incur a cost. If the costs prove prohibitive, this will be a potentially wasted opportunity to modernise and streamline the right to work checking process for UK and Irish citizens.
Retrospective Right to Work Checks
Despite previously indicating that retrospective ‘in-person’ checks will be required on all employees who have had an adjusted check under the temporary system over the last two years, the Home Office have reiterated in their most recent Guidance that this will not be required. This is a relief to many employers, given how long the temporary system has been in place and the significant number of retrospective checks that would have been required. This is welcome news for employers as it means they can avoid what would have been a very time consuming and administrative task.
Other changes
One other significant change is the phasing out of Biometric Residence Permits and Biometric Residence Cards.
From 6 April 2022, holders will only be able to evidence their right to work using the online Home Office service. Importantly, employers will no longer be permitted to accept physical cards as evidence of right to work in the UK, even if the card/permit shows a later expiry date.
Helpfully, however, retrospective checks will not be required by any employer who has relied on a Biometric Residence Permit presented to them before 6 April 2022 to satisfy the right to work checks in line with the guidance in force at the time.
Penalties for Non-Compliance
The penalties for non-compliance with the guidance will not change as part of the overhaul to the rules, and this remains a significant risk for businesses who fail to meet the requirements.
As discussed in our previous blogs on the right to work rules, employers who fail to carry out the checks properly potentially face civil penalties (up to £20,000 per illegal worker), criminal penalties (unlimited fines and up to five years in prison), naming and shaming, reputational damage and the loss of any sponsor licence.
If you have any queries regarding the new rules or concerns over any other aspect of the right to work checking process, please contact Laura Darnley or Claire Flavin or any member of our team of expert business immigration solicitors.
