The latest on digital right to work checks from 6 April 2022

In last month's employment bulletin, we highlighted the Home Office's significant announcement that from 6 April 2022, employers should be able to use Identification Document Validation Technology (IDVT) to conduct online right to work checks on British and Irish nationals with valid passports and passport cards. Also, within the last couple of days, the Home Office have extended its adjusted COVID-19 right to work checks, allowing employers to carry out a manual right to work check using video conferencing and copies of supporting documents to 30 September 2022.

From 6 April 2022, employers with a British and/or Irish candidate will have the option to conduct a right to work check by (1) using the adjusted COVID-19 right to work check (until 30 September 2022), (2) contacting an approved third party (often referred to as an Identity Service Provider "IDSPs") or (3) by completing a manual check. This short article focuses on the second option and details four main considerations that employers should contemplate before using IDVT along with the outstanding questions which remain:

Employers remain liable

The employer isn't off the hook by engaging a private sector service provider. An employer will remain at risk of the civil penalty if the digital right to work check is not carried out correctly. That civil penalty can be up to £20,000 if it transpires that an employee does not hold permission to work in the UK. Therefore, staff and recruitment teams will need to be aware of the options available to them and ensure that approved IDSPs are conducting the checks in a complaint manner, to ensure their statutory excuse against illegal working is retained.

You can't select any third-party provider

The Home Office will maintain a list of approved and certified IDSPs. The process for third party certification opened in January 2022 and, as at the time of writing, no third-party providers had been added to the governments' list. No doubt the government have been inundated with private service providers wanting to obtain certification to then be added to the 'golden' list. We expect this list to be updated during late March 2022. We will provide further details as they are released. 

This may (or more likely will) come at a price

Private third-party providers are not going to obtain certification for nothing. They are going to want to make a profit from this new technology, meaning that digital right to work checks for British and Irish nationals is likely to carry a cost. This cost is currently unknown, but we anticipate IDSPs to be set boundaries by the government, which could mean each check is anywhere between £1.45 to £70. Some smaller employers may therefore choose this option as a last resort, rather than a first port of call.

Staff training must be provided

The Home Office guidance on employers right to work checks confirm that employers must provide training to their staff who will be using IDSPs. For example, staff must be clear on what information they must obtain from the IDSP and what obligations need to be fulfilled by the employer using such services. A key obligation which will continue is the 'checking' of a document as employers using IDSPs will still be expected to check the prospective employee's identity against that which is verified by the IDSP. This will involve the employer making an image of the individual (either in person or via a video call) and providing this image to the IDSP with a confirmation statement.

The flexibility to use IDSPs is undoubtedly a welcome response from the government after the pandemic, which has meant a shift towards increased hybrid and remote working models. However, employers will need to be prepared to select an approved provider, provide staff with training and budget accordingly if they wish to take advantage of this new technology. 

Details on this new digital system are currently limited but those that are available are contained in Annex F of the Home Office right to work checks guidance. If you have any questions on the above developments or have general business immigration queries, please do get in contact with Gemma Robinson.