As a UK employer, you are under a duty to prevent illegal working by ensuring that those you recruit, and remain in your employment, have the right to work in the UK and undertake the work on offer. The following guide sets out the new rules on digital right to work checks. We also examine the potential penalties for failing to conduct a prescribed check, and how digital right to work checks can be used to establish a statutory excuse against civil liability.
What are digital right to work checks?
Under current the Right to Work rules, employer checks should be carried out either by:
- Conducting a manual document check: having obtained original documents from Lists A or B of the Home Office’s list of acceptable documents, you must ensure that these documents are genuine, and that the employee is the rightful holder and permitted to do the type of work on offer. You must also make clear copies and retain these in a format that cannot be manually altered.
- Conducting online checks using the share code provided by the worker.
- Using the online Employer Checking Service: this is a free-to-use Home Office service that will allow you to electronically check whether someone is allowed to work in the UK and the nature of any restrictions on their right to do so.
- Conducting digital right to work checks.
Digital right to work checks allow workers to prove their right to work remotely while allowing employers to comply with their prevention of illegal working duties. Employers can use certified Identity Service Providers (IDSPs) to complete their digital right to work checks for British and Irish workers.
What do IDSP and IDVT mean?
Digital right to work checks are a new form of prescribed check in the UK using the services of an Identity Service Provider (IDSP) to digitally verify a worker’s identity using Identity Document Validation Technology (IDVT). An IDSP is a provider of identity verification services using IDVT, while IDVT is a form of technology used to verify the identity of an employee. This is where a digital copy of a physical document relating to the employee is produced for verification of the document’s validity, and whether that individual is the rightful holder.
Digital identity verification conducted by IDSPs is essentially the process of obtaining evidence of an employee’s identity by way of an image rather than a physical document, and checking that this is valid and actually belongs to the person who has provided it.
There are now various certified IDSPs to provide identity verification to specific levels of confidence, specified by government standards, in line with the UK Digital Identity and Attributes Trust Framework (the ‘trust framework’). The trust framework is a set of rules that IDSPs agree to follow to conduct secure and trustworthy IDVT right to work checks.
Who can use digital right to work checks?
Following positive feedback received about remote right to work checks during the COVID-19 pandemic, the Home Office instigated a review of the availability of specialist technology to support a new system of digital checks. IDVT now allows individuals to verify their identity remotely and prove their eligibility to work, without the need for physical document checks.
The relevant regulatory changes enabling employers to use IDSPs to remotely verify the identity and right to work of new recruits came into effect on 6 April 2022. The official guidance on right to work checks at GOV.UK has also been updated to include IDVT right to work checks. However, the services of an IDSP can only be used to carry out digital identity checks on behalf of individuals who hold a valid British or Irish passport, or Irish passport card. This is because British and Irish citizens are not in scope to use the Home Office online service, where a manual check of their passport would otherwise need to be made.
In respect of all other recruits, the online Right to Work Checking service will now be available in most cases. This is because under other new rules that also came into effect on 6 April 2022, overseas nationals who have either a biometric residence card or permit, or a frontier worker permit, can only be checked online, not manually. Increasingly, the Home Office is also issuing eVisas rather than physical documents as proof of an individual’s immigration status.
Overall, the increased use of online checks and the new IDVT right to work checks should help to expedite the recruitment and onboarding process, improve employee mobility, enhance the integrity of identity checks and support long-term post-pandemic working practices.
How are digital right to work checks carried out?
For employers to rely upon the IDVT identity check carried out by an IDSP to prove eligibility for the purpose of a right to work check, the potential employee must have a valid British or Irish passport, or Irish passport card. If an individual is reliant on an expired document to prove their right to work, an IDVT check will not be valid. In these circumstances, you would instead need to carry out a manual check of the original document in the prescribed manner.
When conducting IDVT right to work checks, the IDSP must take all reasonable steps to check the validity of the document provided by the employee and to verify the person is the rightful holder of that document. The IDSP must also record the data in a format that cannot be altered, as well as the date on which the identity check was carried out on your behalf.
For each identity verified by the IDSP using IDVT, certain information must be obtained during the check. This information must include an image of the biometric page of the identity document, including the holder’s personal details, such as their name, date of birth and nationality, their photograph and the date of expiry of the identity document. This must then be provided to you in a clear and legible format which cannot be altered.
Where an employee has made an in-time application for permission to stay in the UK, their right to work will continue up until that in-time application, or any review or appeal, has been determined. In these circumstances, you will usually need to ask the Home Office to check that person’s status using the Employer Checking Service (ECS). Provided the application was made prior to expiry of the individual’s existing leave, the Home Office will issue a Positive Verification Notice (PVN), where a PVN appears on List B (Group 2) of acceptable documents.
Who is responsible for IDVT right to work checks?
Although changes to the right to work rules permit the use of IDSPs for identity verification purposes, enabling employers to delegate elements of the checking process to IDSPs, identity service providers act on behalf of the employer. As the ‘relying party’, this means that the responsibility for right to work checks will remain with the employer, not the provider.
Guidance issued by the Home Office in February 2023 emphasised the limitations of a statutory excuse when using IDSPs that offer manual checks of physical papers or checks through the Home Office’s online service, specifically prohibiting the use of IDSPs for this purpose “… other than where you use an IDSP expressly for right to work checks of British or 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 if the manual document-based check, or online service right to work check, is performed by an IDSP.”
As the employer, you retain your obligation under the illegal working regime to satisfy yourself that the IDSP has carried out an identity check on the employee, where an IDSP is used, you will need to complete each of these steps before employment commences:
- Obtain a copy of the IDVT identity check from the IDSP and the document checked, in a clear and legible format that cannot be altered
- Carry out your own due diligence to satisfy yourself to a reasonable belief that your chosen identity services provider has completed the check correctly in the prescribed manner
- Satisfy yourself that the biographic details and photograph on the IDVT identity check are consistent with the individual presenting themselves for work, for example, their date of birth, and that they are not an imposter
Where names differ between documents, you must establish why this is the case and not employ that individual unless you are satisfied that the documents relate to them
Securely retain the data provided by the IDSP, either in electronic or hard copy for audit and investigation purposes, for the duration of employment and for a further 2 years after the employment has ended, after which the copy must be securely destroyed.
IDSPs using Reusable Identities
Home Office guidance issued in March 2023 specified technical requirements when relying on reuseable IDVT results for digital checks. Some IDSPs have the capability to create a reusable digital identity or attribute service. What this means in practice for digital right to work checks is that the holder of a British or Irish passport may be able to complete the document and biometric checking process once and reuse the resulting IDVT output each time they are due to start a new job, until the passport expires. The guidance now sets out the technical requirements for reusable identities to be accepted for digital check purposes.
Penalties for breaching of right to work duties
Under the prevention of illegal working regime, you must conduct right to work checks on all new recruits to satisfy yourself that they are not disqualified from working by reason of their immigration status. By correctly conducting right to work checks on all potential employees, this will provide you with a statutory excuse against liability for any civil penalty if someone is found to be working for you illegally. Equally, by conducting follow-up checks on existing employees with a time-limited right to be in the UK, for example, following a manual check based on documents from List B of acceptable documents, this will enable you to maintain that excuse.
Any failure to cary out a right to work check where required, either at all or in the prescribed manner, could leave you liable to a civil penalty of up to £20,000 per illegal worker. This is because you will not be able to provide a statutory excuse against civil liability. Equally, if you know or have reasonable cause to believe that a person does not have the right to work, and you employ them anyway, you could be criminally prosecuted. The penalties for knowingly employing someone whose immigration status does not entitle them to work in the UK, or to do the work on offer, could lead to both an unlimited fine and up to 5 years in prison.
Employing illegal workers can also lead to the loss of your sponsor licence, the loss of migrant workers with a legitimate right to work in the UK and serious damage to your employer brand.
Using digital checks to defend against illegal working penalties
When it comes to prevention of illegal working, you must conduct right to work checks on all employees, regardless of their nationality. Should you be found to be employing someone without their identity and eligibility being verified correctly in the prescribed manner, you will not establish a statutory excuse against civil liability if they are found to be working illegally.
Conducting digital right to works checks for British or Irish citizens, as opposed to manual document checks, should help reduce the risk of human error, not to mention reduce the time involved in having to physically examine passports. Overall, IDVT right to work checks should help to create more streamlined and safer on-boarding checks.
When using the services of an IDSP to complete the digital identity verification aspect of right to work checks for British and Irish citizens, it is highly unlikely that these workers will later be found to be working for you illegally. You will also not be required to conduct a follow-up check, because there will be no restrictions on their right to be in the UK, where your statutory excuse will be for the whole duration of that person’s employment.
However, Home Office guidance published in March 2023 states that although IDVT can be used as an additional optional measure to enhance pre-employment screening processes and reduce the risk of fraud, it does not form part of an employer’s statutory excuse against liability for an illegal working civil penalty in the case of a manual or online check. The problem for employers is that some IDSPs and pre-employment screening providers are currently using processes in which the provider (rather than the employer) completes aspects of manual and/or online right to work checks, which may result in a statutory excuse not being available. This is possible if the provider directly accesses the Home Office’s online system, or if the relevant original document(s) for a manual check are not copied by an employer employee. Although civil penalties are only imposed if an individual does not have the right to work in the UK, employers who are also sponsors must follow the right to work guidance as part of their sponsor duties. Conducting checks in a manner that does not qualify for a statutory reason may result in sponsor licence enforcement action.
It is not a mandatory requirement to use a certified IDS. However, to obtain the required level of confidence for the purposes of correctly conducting digital right to work checks, using a certified provider is strongly recommended. This is because you will only obtain a statutory excuse against civil liability if you reasonably believe that the provider has carried out their checks in accordance with Home Office guidance. Using a certified IDSP will provide assurance that your chosen provider has been independently assessed as being capable of providing identity verification services in accordance with the standards set out in the trust framework. A list of certified providers is available on the Home Office website.
DavidsonMorris’ business immigration lawyers specialise in supporting UK employers with their Right to Work compliance. For expert guidance to help you meet your duties and avoid Home Office scrutiny and enforcement action, contact us.
Digital right to work FAQs
What are right to work checks?
A right to work check, whether done digitally, using an online share code or conducting a manual document check, is designed to ensure that an employee is not disqualified from working in the UK by reason of their immigration status.
Are right to work checks mandatory?
Under the illegal working regime, any UK employer that fails to carry out a right to work check, and a worker is found to be working illegally for them, will be liable to a civil penalty of up to £20,000.
How long are right to work checks valid for?
Where a person’s right to work in the UK is time-limited, a right to work check must be repeated when their permission expires, while those with indefinite leave to remain will be covered for the duration of their employment.
Last updated: 10 March 2023