The way employers conduct right to work checks set to change from April 6th

Talitha Degwa

In this article, Talitha Degwa, Employment Law Senior Associate at VWV, discusses the changes to the way employers conduct right-to-work checks that are set to come in from April 6th, 2022.

As reported in December 2021, the Government is introducing changes to the way in which employers are expected to check the right to work of employees and prospective employees. Currently, foreign nationals who hold biometric cards can choose to demonstrate their right to work in the UK either by showing an employer their physical card or sharing their status via the Home Office’s online service.

This flexibility means that employers and workers can choose between the relative simplicity of producing and checking a physical document in each other’s presence, and sharing immigration status online without having to meet in person.

In December though, the Government announced that from 6 April 2022 holders of biometric cards will only be able to demonstrate their right to work in the UK using the Home Office online service. Employers will no longer be able to accept physical cards for the purposes of a right to work check, even if the card shows a later expiry date.

Employers are, therefore, advised to familiarise themselves with the online right-to-work checking process in advance of these new rules coming into force.

What About Remote Checks on British or Irish Passport Holders?

At present, the only way a British or Irish national can currently evidence their right to work in the UK is by presenting their physical documents to the employer. There is currently no online service available that employees can use in order to demonstrate their right to work in the UK.

There is a concession currently in place which permits employers to check those documents using scanned documents and video calls, but this is scheduled to end on 5 April 2022. The Government had previously indicated that they were looking at ways of allowing employers to conduct remote checks on British and Irish passport holders, and now those details have been published.

The Changes to Evidencing Right to Work for British and Irish Nationals.

From 6 April 2022, British and Irish nationals will also have the option to have their right to work checks conducted online. However, to take advantage of this new facility, the employer would need to have a subscription with a certified Identity Service Provider (IDSP). The IDSP will – for a fee – act on behalf of the employer to carry out the right-to-work checks.

The Home Office has released details of the eligibility criteria for prospective IDSP. To date, no IDSPs have been registered by the Home Office, but the hope is that by 6 April 2022 there will be a list of providers which employers can engage to conduct remote right to work checks on prospective employees on their behalf.

The responsibility for the right to work check will still remain with the employer though, so employers will need to satisfy themselves that the checks are being conducted in accordance with the Home Office’s guidance.

Unlike the change to checks conducted on biometric cards, employers will still have the option to check British and Irish passports themselves, but from 6 April, this will need to be by the worker presenting their original documents to their employer and the check being conducted in person.

While these changes will not come into force until April 2022, employers are encouraged to familiarise themselves with the changes now so that they are able to comply with the new requirements when they take effect.