What you need to know about changes to the Right to Work scheme

Given the rise of remote working, employers may want to consider using digital checking services to avoid the need for in-person checks.

What are right to work checks?

Under UK legislation, employers must check that all prospective employees have lawful immigration status in the UK before entering into employment to avoid being liable for a civil penalty.

With the COVID-19 concession ending on 30 September, employers need to ensure that they are fully familiar with the new guidance and also consider whether they wish to look into using an Identity Service Provider (IDSP) to eliminate the need for conducting manual checks.

Under the current scheme there are now three types of right to work checks:

• An online check; or
• A manual check; or
• A digital check which can be undertaken instead of a manual check.

The type of check an employer is required to conduct will depend on the immigration status or nationality of the prospective employee.

Employers will be aware that a COVID-19 concession has been in place between March 2020 and 30 September 2022. This has meant that even where a manual check would normally be required, this has not been necessary under the concession and employers have been able to conduct manual checks remotely using video calls etc.

With the ending of the concession on 30 September 2022, this constitutes a significant change for employers who now need to know which check is required under which scenarios and to also know how to use the online Home Office system. 

When online checks are required

An online right to work check has been required for all Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit holders from 6 April 2022, as well as individuals who only hold digital proof of their immigration status in the UK, such as EU nationals. This is known as the ‘share code’ system. Employers are required to obtain a share code from the prospective employee in order to conduct the online right to work check using the Home Office online checking service. Once conducted the online check must be downloaded and stored.

Use the Employer Checking Service

Using digital checks

Digital checks have also been permitted since 6 April 2022 if using approved Identity and Document Verification Technology via an Identity Service Provider (IDSP). The IDSP may perform the check on behalf of the company on current British and Irish passports and Irish passport cards (expired passports must still be checked manually). This means that a manual check is not required. Via the technology:

• Facial recognition / liveness technology will prove that the person is “live” in front of the camera and that they are a true likeness of the person in the photo on the document.
• The document itself will be classified as authentic using the technology alone. It will not be required to be seen physically.

The update in legislation means that a large proportion of right to work checks no longer need to be face-to-face if using an approved IDSP.

If not using an IDSP a manual check must be performed, including for third country nationals who do not hold a BRP, BRC or digital immigration status.

Next steps

With the rise of remote working since the pandemic, many employers will face logistical issues in having to perform manual checks. Investing in being able to perform digital checks will, for many, be the obvious way forward.

For further information for employers on how to use the online services, guidance is available on gov.uk.

For further information on accredited Identity Service Providers, visit gov.uk.

For any questions, contact Alison Hutton.