Rules for digital right to work checks coming this spring

Posted 28/01/2022 : By: Kathryn Knight

The new system for digital checks of candidate’s right to work in the UK allows employers to do so via a third party, without having to check physical documentation.

The change was initially introduced as a temporary measure to aid remote working in response to the Coronavirus pandemic, and was due to revert back to in-person checks on 5 April this year. However, after a number of extensions and successful trial of digital right to work checks during the pandemic, the government has decided to make the move permanent from 6 April.

What does the new digital system mean for employers?

The Home Office has updated its employer guidance setting out how employers can comply with their responsibilities to conduct digital right to work checks. The revised guidance can be found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1047370/2022_01_17_Employer_s_Guide_.pdf

Employers will need to use certified Identity Service Providers (IDSPs) to complete digital identity and eligibility checks and will need to ensure the provider meets the certification criteria which is yet to be set by government.

The steps to check a worker’s identity with a service provider are expected to require employers and service providers to:

  • get evidence of the claimed identity (likely by uploading a copy of the document to the service provider);
  • check the evidence is genuine or valid;
  • check the claimed identity has existed over time;
  • check if the claimed identity is at high risk of identity fraud; then
  • check that the identity belongs to the person who’s claiming it.

Employers will still have to confirm that the image provided to the service provider is a true likeness of the prospective employee in order to complete the last step. This can be in person or remotely via a video call.

The guidance also requires employers to provide appropriate training and guidance to staff who are involved in completing right to work checks. For example, on what information they must obtain from an IDPS to confirm a candidate’s identity, what information can be used for, and what other requirements they still need to fulfil to establish eligibility to work.

The government is now going through the process of certifying identity service providers who will be able to provide digital checking services to employers. Further details on how the scheme will work in practice will likely be provided ahead of April.

Will employers still be able to carry out in-person/manual checks form 6th April 2022?

The new digital scheme is proposed as an alternative to completing in person/manual checks, however, employers will still be able to complete manual checks for British and Irish citizens if they prefer.

The Home Office’s online Employer Checking service is still available to employers and should be used to check the right to work of migrants who have a biometric residence card, biometric residence permit or frontier worker permit, or evidence of Settled Status or pre Settled Status. These individuals will need to view their own Home Office Right to work record and obtain a ‘share code’. The employer can then use this code to check the employee’s right to work status and obtain a ‘statutory excuse’ against prosecution for employing illegal workers. Retrospective checks will not be required on biometric card holders who, before 6 April 2022, used their physical card to demonstrate their right to work.

If you need advice on your duties around right to work checks or how to complete the correct checks for an employee, please contact a member of the Ashtons HR Consulting team.

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