The Home Office guidance, 'Employer right to work checks supporting guidance' (otherwise known as 'An Employer's right to work checks'), was last updated on 16 December 2021 and 17 January 2022. The most significant updates in this guidance relate to I) Update on BRP/Cs to prove the right to work and II) Guidance for employers and Identity Service Providers (IDSPs) regarding the use of digital identity verification. The relevant changes to legislation will take effect from 6 April 2022. Here is a summary of the changes for review by your agency:

I)            Biometric Card Holders

The Home Office has announced that from 6 April 2022, employers can only check the right to work of those who hold a biometric residence card (BRC), biometric residence permit (BRP) or frontier worker permit (FWP) online.

Notification of the change was made on 16 December 2021 in a new Annex E to the Employer's right to work checks supporting guidance.

A corresponding change has also been made concerning right to rent checks.

What will employers need to do from 6 April 2022?

From this date, employers must carry out a check for individuals holding a BRC, BRP or FWP using the Home Office's online right to work check service. It will no longer be an option to complete a manual right to work check using a physical BRC, BRP or FWP.

The Employer must have the individual's date of birth and a valid right to work share code that the individual has generated by accessing the online system for individuals. The share code is valid for 30 days.

It will not be necessary for an employer to carry out a retrospective check for employees where a manual check has been completed on or before 5 April 2022.

Employers must always be careful to ensure they carry out the initial right to work check before the employment is due to commence. The follow-up right to work check-in line with the timings set out in the Employer right to work checks supporting guidance.

Why has the Home Office announced this change?

Before 6 April 2022, there are good reasons why employers may consider inviting, but not requiring, a BRC, BRP or FWP holder to allow the employer to carry out an online check rather than a manual one.

Checking BRCs

Currently, a BRC can only be accepted for a manual right to work check where the Employer is satisfied the holder has status under the EU Settlement Scheme. The simplest way to verify this is to carry out an online right to work check.

Checking BRPs

BRPs are issued to expire on 31 December 2024, even where an individual's immigration permission is due to expire after this date, as the current encryption technology used in BRPs may require an update beyond this date. Carrying out an online right to work check avoids the necessity to schedule a follow-up check before the expiry date on the BRP where the person has limited immigration permission. A follow-up check is not required where an individual's BRP states they have indefinite leave or settled status.

The Home Office was due to announce in 2024 what employers will need to do to verify right to work rights at the follow-up check, but it seems likely this will be an online check. In any event, employers may prefer to carry out online right to work checks for BRP holders wherever possible to minimise the number of follow up checks they may need to do at the end of 2024.

Checking FWPs

In most cases, FWPs are issued electronically, so the option to complete a manual check on a physical permit will be rare.

II)        Digital Identity Verification

From 6 April 2022, employers will be able to use certified Identification Document Validation Technology (IDVT) service providers to carry out digital identity checks on their behalf.*

Notification of the change was made on 17 January 2022 in a new Annex F to the Employer's right to work checks supporting guidance.

The changes will:

  • Allow those in scope to verify their identity remotely, prove their eligibility to work or rent and apply for DBS checks. Using IDVT will allow people to upload images of their personal documents, instead of presenting physical documents to a prospective employer – reducing time and mitigating risk.
  • Allow private sector IDVT service providers to become independently certified by UK Accreditation Services (UKAS) accredited assessors to ensure the technology meets the Government Standards and the applicant's data is protected.

The guidance makes it clear that employers who use IDVT provided by an IDSP will still ultimately be responsible for each right to work check carried out. However, an employer will be able to rely on a verified identity from a certified IDSP as providing the required level of confidence for the purposes of claiming a statutory excuse against being liable for an illegal working civil penalty.

Further information about the certification bodies available to certify IDSPs will be published here.

The DBS has published some digital identity verification guidance which was updated on 17 January. This sets out how Registered Bodies (organisations registered with the DBS to submit standard, enhanced and enhanced with barred list checks) and Responsible Organisations (a person or organisation registered with the DBS to submit basic checks) can undertake digital identity verification for the purposes of verifying an individual's identity, as part of an application for a DBS check.

The DBS guidance points out that a DBS check does not provide evidence of a person's right to work in the UK, and that a separate check must be done to make sure that a job applicant can work in the UK. However, it points out that IDSPs may also be certified to undertake right to work checks and so a single check may be used to confirm a person's right to work eligibility and identity for a DBS check.

*Alternatively, employers will be able to check the validity of British passports and Irish passports/cards in person, as per pre-COVID guidelines.

What other announcements can we expect?

COVID-19 temporary adjusted right to work checks are due to end from 6 April 2022. We anticipate that the Home Office will announce whether they will further extend this before this date.

Questions?

If you have any queries about any of the above changes, please get in touch with the GRI Corporate Services team at corporate@geometricresults.co.uk.​​​​

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