Changes to Pre-employment Checks on Right to Work in the UK

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[co-author: Ross Kennedy]

The Home Office’s UK Visas & Immigration (UKVI) department this week confirmed upcoming changes to the way in which employers will be able to check a prospective employee’s right to work in the UK from April 6, 2022.

What we know about the right to work changes

UK employers at present have three ways to conduct checks on a job candidate’s right to work: inspecting their physical ID documents in a manual check; looking the candidate up on the UKVI immigration database in an online check and thirdly, the remote checks introduced as a concession during the pandemic, whereby, until April 5, employers are able to use a scan or photo of a candidate’s ID instead of the actual document.

From April 6 employers will no longer be permitted to accept some physical documents as evidence of right to work. This includes Biometric Residence Permits (BRP), Biometric Residence Cards issued to family members of EEA migrants under the EU Settlement Scheme and Frontier Worker Permits for EEA migrants. Employers will instead be expected to use the free UKVI online checking tool.

Where someone is employed on or before April 5, 2022 and checks were made at the time using a physical document, employers will not need to do retrospective checks, although follow-up checks will still be required where someone has limited permission to stay in the UK.

UKVI announced in June 2021 that, due to positive feedback about the flexibility that employers have enjoyed with remote checks during the pandemic, they intended to introduce a new digital solution to allow more types of status to be checked online, including UK and Irish citizens whose status cannot be confirmed using the current UKVI online checking service. At the end of December 2021, the government announced that it planned to work with Identification Document Validation Technology (IDVT) service providers to carry out checks on people outside the scope of UKVI’s own online checking service from April 6, 2022.

New verification services for British and Irish citizens

This week the UKVI updated its digital identity verification guidance for employers and identity service providers (IDSPs) to confirm the legislative changes from that date.

Unlike the free UKVI service for holders of digital immigration status / BRPs, outsourced IDSPs will charge employers for their services. According to the Recruitment and Employment Confederation (REC), which has been campaigning for digital checks to become a permanent feature, and have been consulted by the Home Office, there will be a price of between £1.45 and £70 per check. The REC has complained about the cost of IDVTs – potential extra costs for businesses already dealing with National Insurance hikes and rising inflation. It appears that the cost may depend on the Level of Confidence (LoC) to which these service providers are certified. A list of certified IDSPs will be published by the Department for Digital, Culture, Media & Sport, along with their certified LoC.

Whether using an IDSP or not, it will remain the employer’s responsibility to discharge their duty to conduct right to work checks and prevent illegal working. So, for example, it will be on the employer to make sure they are using a certificated IDSP or that the image in the ID is that of their new employee.

Employers will still be able to do manual checks meeting prospective employees face to face if they do not wish to pay for the service providers.

Initially it will only be possible to conduct right to work checks on valid British passports, valid Irish passports and valid Irish passport cards using IDVT. Therefore, if an individual wishes to rely on an expired British or Irish passport (or passport card), the employer must undertake a manual check instead of using an IDSP. So unless the pandemic concession for remote checking is extended yet again which is unlikely, these checks must be undertaken using the original, physical document.

The pandemic and remote checking

Over the last couple of years, there have been a number of changes to the process by which employers are expected to check a prospective employee’s right to work in the UK. These have partly been driven by the practicalities of the COVID-19 pandemic and partly by the increasing digitalisation of the UK’s immigration system.

UKVI’s pandemic concessions which the new IDSPs appear to replace enabled employers to move away from checking physical documents, which has been the primary way for an employer to check someone had the right to work in the UK since the requirement was first introduced in 1997. The pandemic changed this for purely practical reasons – people were not working face-to-face as much and physical document checks often were not possible, so UKVI allowed these to be done remotely, on a temporary basis. Although they tried to end the remote concession and return to the old process a number of times, UKVI in the end extended the concession several times with it currently due to end on April 5, 2022.

Digital status and e-Visas

Digitalisation has been a goal for the UKVI for a number of years, beginning with the option introduced in 2018 for employers to check immigration status online, instead of using a physical document, if a person holds a BRP. EEA and Swiss migrants granted status under the EU Settlement Scheme or who have come to the UK since Brexit are now often given completely digital status (e-Visas) with no physical visa documentation. Towards the end of 2021 this was extended to some non-EEA Skilled Worker applicants in the UK. UKVI aims to do away with physical immigration documents entirely by the end of 2024.

The requirement from April to check digital status of BRP holders rather than the BRP itself represents the next step in UKVI’s ongoing digitalisation of the UK’s immigration system. While it may be seen as a step forward, as employers don’t need to check a physical document, it should be noted that this has been possible since 2018 so removing the choice of checking the BRP in fact removes flexibility. There are also ongoing concerns about the lack of physical documents for migrants, as have been raised repeatedly in relation to EEA citizens after Brexit. There are concerns in some quarters that this is another Windrush in the making.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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