Right to work: New changes to the guidelines

New changes to the guidance which applies to any right to work check conducted on or after 26 January 2023 has been published.

All employers in the UK have a legal duty to prevent illegal working and, as such, right to work checks must be carried out before any individual can begin employment. Carrying out these checks allows an employer to establish a defence (or statutory excuse) which will allow them to avoid liability should it transpire an employee is not able to work for them because of their immigration status.

Use of identification document validation technology (IDVT) and identity service providers (IDSPs)

Since 6 April 2022, employers have had the ability to use identification document validation technology (IDVT) to carry out these checks through an identity service provider (IDSP). More information on these changes can be found in our previous article here.

The guidance changes offer the following clarifications on the use of IDVT for right to work checks:

• IDSPs can only be used to check the eligibility of British and Irish citizens who hold a valid passport. For those who would require a share code, which allows an employer to check an applicant’s right to work through the Home Office, this cannot be done by the IDSP.
• The guidance clarifies that employers still have a responsibility to gain evidence from the IDSP that the IDVT check has been carried out. The statutory excuse can only be established if the employer has a reasonable belief that the IDSP has followed the guidance when carrying out their checks.

Therefore, it is important to note that employers should not see IDVT as a way of outsourcing their right to work checks, but rather are a method of enhancing the process with the responsibility still firmly on employers to ensure that they are ensuring that these are carried out properly and that they are fulfilling their duties to retain evidence of the check.

End of Covid 19 temporary adjusted checks

The new guidance confirms that the adjustments to right to work checks to incorporate Covid-19 restrictions that were introduced in 2020 ended on 30 September 2022. Checks carried out in this period are still valid and no further checks are required. However, as of 1 October 2022, the only methods of carrying out right to work checks available to employers are:

1. Manual checks
2. A check using IDVT provided by an IDSP for British and Irish citizens
3. An online Home Office check for those who are not British or Irish citizens

Use of the Home Office Employer Checking Service

There are some circumstances in which employers will have to contact the Home Office to use its Employer Checking Service (ECS). The latest update to the guidance advises that this should now be used where a potential employee provides notification that they have a pending application to stay in the UK which was made before the expiry of their previous permission or that they have lodged an appeal or administrative review. In these circumstances, the employee will be unable to provide any right to work evidence otherwise.

What effect do these latest changes have on employers?

These updates sought to clarify certain elements of previous guidance rather than make large-scale changes. Employers should ensure that they are vigilant when using IDSPs to aide their right to work checks and that they are carrying out the right form of check for the circumstances of each individual employee.

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