Digital Right to Work Checks

By law, UK employers have to verify that all prospective employees are eligible to work in the UK and have the necessary permission to do the work on offer, regardless of their nationality or ethnic origin. One of the ways that employers can conduct these checks is to use digital right to work checks.

In this guide for employers, we explain what digital right to work checks are, when they can be used and how to conduct this type of check.

 

What are digital right to work checks?

A digital right to work check is one of the prescribed ways for employers to ensure that a new-starter is not disqualified from working in the UK or doing the work on offer by reason of their immigration status. Provided the check is conducted correctly, this will establish a statutory excuse against civil liability if a person is later discovered to be working illegally.

The Digital Right to Work Scheme launched in April 2022 enables employers to use Identity Document Validation Technology (IDVT) via an Identity Service Provider (IDSP) to complete the digital identity verification aspect of right to work checks. Digital identity verification conducted by an IDSP is the process of obtaining evidence of a new-starter’s identity, checking this evidence is valid and that it belongs to the person claiming it.

IDVT is a form of technology operated for the purpose of verifying the identity of a subject, whereby a digital copy of a physical document relating to that individual is produced for verification of the document’s validity, and whether that person is the rightful holder. As such, a digital right to work check allows employers to remotely verify the right to work status of a prospective employee by partnering with an IDSP. Equally, provided the digital verification check is reliable, and an accurate record of that check is retained, this will enable the employer to establish a statutory excuse against civil liability if a person is later discovered to be working illegally, for example, having used a fake or borrowed passport.

 

When can digital right to work checks be used?

The aim of the Digital Right to Work scheme is to enable employers to use certified IDSPs to carry out digital identity checks on their behalf for British and Irish citizens who are not in scope to use the Home Office online service. The Home Office online checking service is instead aimed at overseas nationals whose immigration status is held in electronic format.

Digital right to work checks are therefore only for prospective employees who hold a valid British or Irish passport, including an Irish passport card. However, employers must not treat British or Irish citizens who do not hold a valid passport, or who do not wish to prove their identity using an IDSP, any less favourably. In these cases, the employer should carry out a manual document-based right to work check to verify the validity of their ID.

Equally, other than where an employer uses an IDSP expressly for right to work checks of British and Irish citizens with a valid passport (or Irish passport card), it is not possible to establish a statutory excuse against liability for a civil penalty where an IDSP has been used to perform a manual document-based check. This must be performed by the employer.

 

How to carry out digital right to work checks

Right to work checks must be conducted in accordance with Home Office guidance and the Code of practice on preventing illegal working. In this way, employers can establish a statutory excuse against civil liability if found to be employing someone who is disqualified from working or carrying out the work on offer by reason of their immigration status.

When it comes to carrying out digital right to work checks via an IDSP, the responsibility for the check still rests with the employer, where the employer must ensure the IDSP selected to complete the identity verification aspect of the check carries out a prescribed check prior to the commencement of employment. Additionally, a valid British/Irish passport or valid Irish passport card, must be provided by the employee. If a new-starter is reliant upon an expired passport or passport card to prove their eligibility for the purpose of a right to work check, an IDVT check will not be valid. In these cases, the employer must conduct a manual check of the original document in the prescribed manner to obtain a statutory excuse.

When conducting a digital right to work check, the required steps to be taken by both the IDSP and the employer (as the relying party) are as follows:

• The IDSP must take all reasonable steps to check the validity of the prospective employee’s passport or passport card and take all reasonable steps to verify the employee is the rightful holder of that document. The IDSP must also record (in a clear and legible format that cannot subsequently be altered) certain information to forward to the employer. This includes the passport holder’s name, date of birth, an image of the biometric page of the document and the date on which the check was carried out.
• The employer must satisfy themselves that the photo and biographic details recorded on the output from the IDVT check are consistent with the person presenting themselves for work, and that this person is not an imposter. This can be done in person or by video call. The employer must also retain a clear copy of the ID check output for the duration of employment and for 2 years after the individual’s employment has come to an end.
• Even though the use of IDSPs for identity verification purposes is permitted, where employers are able to delegate this aspect of the checking process, the employer is still responsible for ensuring the information correlates to their new-starter. Employers are therefore strongly encouraged to provide appropriate training and guidance to their staff on what information they must obtain from an IDSP to confirm verification of an employee’s identity and the additional steps they must take to establish a person’s eligibility to work.
• The employer should also carry out their own due diligence to satisfy themselves to a reasonable belief that the IDSP has completed the check correctly in the prescribed manner.
• Follow up checks

 
Right to work checks must be conducted on all prospective employees before starting a new job, regardless of their nationality or ethnic origin, as well as any existing employees whose initial right to work check revealed that their permission to work in the UK is time-limited. However, for holders of valid British or Irish passports (or Irish passport cards), where an employer has utilised the services of an IDSP for identity verification purposes, a digital right to work check will provide the employer with a continuous statutory excuse.

Still, the employer must obtain evidence of the IDVT check from the IDSP. Additionally, a statutory excuse will only be established if the employer reasonably believes that the IDSP has carried out their checks in accordance with the Home Office guidance. IDSPs can conduct digital identity verification to a range of levels of confidence (LoC), where employers are advised to only accept checks via an IDSP which satisfy a minimum of a “Medium LoC”. A list of certified providers is available on the Home Office website.

It is not mandatory to use a certified IDSP, but this is strongly encouraged by the Home Office, where certification provides reassurance that the services can be trusted and are secure. By using a certified service provider, employers can reduce any risks around the use of fraudulent documents by those looking to work illegally in the UK, where certified IDSP’s are able to assure prospective employee identities and eligibility using consistent and more secure methods. This therefore allows employers to recruit in a safer way.

 

If the worker fails the digital right to work check

If an employer is found to be employing a person without their identity and eligibility being verified correctly in the prescribed manner, the employer will not have a statutory excuse against civil liability in the event the individual is found to be working illegally by reason of their immigration status. Additionally, where an employer actually knows or has reasonable cause to believe that a person does not have the right to work, and they go on to employ them anyway, this is a criminal offence for which they could be prosecuted.

As such, if a prospective employee fails their digital right to work check, for example, because their ID is not genuine or belongs to someone else, the employer should not hire that person as they cannot prove their right to work.

 

Other types of prescribed right to work checks

A digital right to work check using the services of an IDSP is one of several prescribed ways in which employers can ensure that prospective employees are not disqualified from working in the UK, or from doing the work on offer, by reason of their immigration status.

For British or Irish citizens who do not hold a valid passport, or who do not wish to prove their identity using an IDSP, employers can instead carry out a manual document-based right to work check. It should also be possible to conduct a manual check for overseas nationals who are unable to prove their right to work using the online checking system.

When using a manual document check, the employer must obtain original documents from either Lists A or B of acceptable proof of work documents. The employer must also ensure that the documents are genuine, and that the person presenting them is the rightful holder and allowed to do the type of work on offer. The employer must then make clear copies and retain these in a format that cannot be manually altered.

When it comes to overseas nationals, it may not be possible to conduct a manual document check. For example, employers can no longer accept a physical Biometric Residence Permit as proof of a person’s right to work. Similarly, employers cannot conduct manual checks for workers with e-Visas. In these cases, the employer would need to conduct an online check.

The online right to work checking service is a Home Office service that enables employers to electronically view the right to work record of an overseas national using a share code provided by the employee. The checking service provides information in real time directly from Home Office systems, including the nature of any restrictions on a person’s right to work. In cases where an employee’s right to work is time-limited, the employer will be required to conduct a follow up check shortly prior to expiry of that individual’s permission.

 

Penalties for non-compliance with right to work checks

All UK employers are under a duty to prevent illegal working by ensuring that those they employ have the right to work in the UK and do the work on offer. Any failure to conduct a prescribed right to work check, including digital checks, can result in a number of adverse consequences for an employer, including substantial fines.

Additionally, if an employer knows or has reasonable cause to believe that a new recruit does not have the right to work, and they employ them anyway, they could be prosecuted. The penalties for knowingly employing someone whose immigration status does not entitle them to work in the UK, or to do the work in question, could lead to both an unlimited fine and up to 5 years in prison. Employing illegal workers can also lead to the loss of any sponsor licence held by the employer’s organisation, the loss of migrant workers who have a legitimate right to work in the UK, as well as serious damage to the employer brand.

 

Need assistance?

DavidsonMorris are UK business immigration specialists. We provide expert guidance on the UK Right to Work regime, including correct use of digital right to work checks and training for employers on how to meet the immigration compliance duties and avoid penalties for non-compliance. Contact us for more information.

 

Digital Right to Work Checks FAQs

What are digital right to work checks?

A digital right to work check enables employers to use Identity Document Validation Technology (IDVT) via a certified Identity Service Provider (IDSP) to complete the digital identity verification aspect of right to work checks for British and Irish passport holders.

Can you do right to work checks online?

The Home Office checking service supports online right to work checks for a range of individuals, depending on the type of immigration document that they are issued with. This includes those issued with eVisas or Biometric Residence Permits.

How do you verify proof of right to work in the UK?

There are a number of ways to verify proof of an employee’s right to work in the UK, depending on their nationality, where identity service providers can be used to carry out digital identity checks for British and Irish citizens.

How is a right to work check done?

To establish a statutory excuse against liability for a civil penalty if found to be employing someone illegally, right to work checks must be conducted in accordance with Home Office guidance and the Code of practice on preventing illegal working.

Who can rely on a digital right to work check?

Employers can only use digital right to work checks on workers with a valid British or Irish passport, including an Irish passport card.

 
Last updated: 31 August 2023