Right to Work Update – The Transition to Digital Checks

Use of IDSPs

From 6 April 2022, employers will be able to use IDSPs to complete digital right to work checks for British and Irish citizens who hold a valid passport (or Irish passport card), removing the unequal treatment of right to work checks favouring migrant workers by providing British and Irish citizens with an online format for proving their identity. This online service is expected to save time and bring efficiency for many employers, although the costs of using the system are currently unknown.

If the individual relies on an expired passport/passport card to evidence their right to work the employer will need to conduct a manual check instead following the correct procedure laid out in Home Office guidance. When conducting a manual check, employers need to be mindful that the “adjusted” right to work check which allowed the use of scanned copies of ID documents will no longer provide a statutory excuse after 5 April 2022. After this date, for manual checks (including those of expired passports/passport cards) employers will need to obtain and verify the original document to complete the check unless further changes are made by the Home Office.

The IDSP must be certified by an independent certification body to confirm that their service meets the Home Office standards for identity assurance and the requirements of the UK Digital Identity and Attributes Trust Framework. All certified IDSPs will be included on a list published online by the UK government. Any employers choosing to conduct digital identification verification themselves will need to be certified as an IDSP. If an employer uses an uncertified IDSP as part of the right to work check, they will not obtain the statutory excuse.

The new process works with the individual uploading images of their documents to the certified IDSP. The IDSP follows the five-step process outlined in Government Good Practice Guide 45 to verify the individual’s identity, assigning a score to each step of the process to determine whether the identity has been verified to the required level of confidence for use in right to work checks. The IDSP will then need to check if the document supplied is valid and linked to the identity of the individual for the employer to gain the statutory excuse. Even if using an IDSP, the employer will still need to check the likeness of the individual either face-to-face or via video call. Where an employer uses an IDSP they will then need to confirm to the IDSP that the photo of the individual provided for identity verification is a true likeness of the individual. The IDSP is required to provide specific results from the process to the employer and these should be retained by the employer for the duration of employment plus 2 years after its termination.

IDSPs give employers the option to outsource some of the work required to complete a right to work check, however, the legal responsibility remains with the employer. For example, where a migrant turns out to have lost their right to work and an employer becomes aware of this, there needs to be a system to track such changes for further action. This could occur where a migrant renounces their UK nationality (e.g. where dual nationality is not allowed). Employers need to have a robust system of monitoring and tracking situations where the initial right to work check may later turn out to be invalid.

Online Right to Work Checks for Migrants with BRPs

For prospective employees with BRPs, right to work checks can currently be conducted manually or using the Home Office’s online checking service (available here). From 6 April 2022 employers will no longer be able to conduct a manual check and must use the online system for this group of individuals. Employers will not need to retrospectively conduct online right to work checks on employees that were previously manually checked. The employer will maintain their statutory excuse provided the check was undertaken in line with the Home Office guidance that applied at the time. However, if an employer chooses to conduct retrospective checks and identifies an existing employee who no longer has the right to work, the employer will need to take the appropriate action to ensure that the individual is not employed illegally.

The Home Office’s online checking service works by the individual accessing their Home Office right to work record. They can then share this with the employer by providing a share code. The employer, being careful to use the employer section of the service, can use this share code and the individual’s date of birth to view their right to work information. If the employer does not use the correct section of the platform they will not obtain a statutory excuse. The employer needs to check that the photo on the online right to work check is of the individual, either via video call or face-to-face. Evidence of the check should be retained as usual and can be obtained by printing or downloading the profile generated on the online service.