An important date is looming for employers. On 30 September 2022, the COVID-concessionary modified right to work scheme is ending. It was temporarily introduced in March 2020 as a response to the Coronavirus pandemic and eased the burden on employers checking physical right to work documents in light of the work from home mandates from the UK government.

From 1 October 2022 onwards, employers will need to re-introduce original document checks. This means reverting to in-person checks and, for many employers with fully remote workforces, immediate thought needs to be given as to how this will be addressed. For some, third party Identity Service Providers (IDSPs) may provide a solution; however be aware that these are not a complete answer – significant limitations apply.

Obligations from 1 October 2022

From 1 October 2022, in order to conduct a valid right to work check (such that the employer will have a statutory excuse to a civil offence of employing someone who is not permitted to do the work in question), employers will need to:

Either

• do a manual document-based check by:
  • obtaining an original document as per set by the UK government in Lists A and B;
  • checking that the documents are genuine and that the person presenting them is the prospective employee or employee, the rightful holder and allowed to do the type of work the employer is offering; and
  • making a clear copy of each document in a format which cannot manually be altered and retain the copy securely: electronically or in hardcopy. The employer must also retain a secure record of the date on which the employer made the check.

Or

• do an online check (this is mandatory for individuals with a BRP, BRC, FWP[1] or e-visa) by:
  • accessing the Home Office online portal service using the share code provided by the individual plus their date of birth;
  • in the presence of the individual, checking that the photograph on the online right to work check is of the individual presenting themselves for work;
  • retaining evidence of the online right to work check.

Or

• engage the services of an IDSP – please see further below.

Carrying out these checks correctly is critical for employers. A failure to conduct valid right to work checks can incur significant civil financial liabilities of up to £20,000 per illegal worker as well as an impact on the employer’s sponsor licence (if applicable).  Employers who knowingly employ (or have reasonable cause to believe they are employing) an illegal worker commit a criminal offence. This offence is sanctioned by an unlimited fine and/or up to 5 years’ imprisonment.

Identity Service Providers 

Since 6 April 2022, employers have the option of using IDSPs to verify eligible individuals’ right to work documentation. This is particularly useful for any employees who are fully remote working. However, there are a number of important limitations to note:

1. They can only be used for British and Irish nationals with a current passport – those with an expired passport or who have never held a passport cannot use this service. This service cannot be used for those with indefinite leave to remain or in the UK on a visa (for these individuals, employers will use the free Home Office portal);
2. A fee, set by the IDSP, will be applicable for each check;
3. If the check is incorrectly taken by IDSP, no statutory excuse will be established and therefore the company will be liable for a civil penalty in the event illegal working has occurred.

Employers should also take note that using an IDSP does not relieve them of their responsibility to conduct a check. The use of an IDSP only removes the need to see the original right to work document. All other checks, such as verifying the individual’s appearance with that of the document they have provided, must still be carried out by the employer in order to obtain a statutory excuse.

Summary of types of potentially valid RTW checks

The introduction of three separate right to work checks may cause confusion for employers. To assist with identifying what check is applicable, we have put together the below table on the most commonly encountered right to work checks.

	Manual in-person check?	IDSP check?	Online Home Office portal check (ie share code)?
British/Irish citizen with current valid passport	Yes	Yes	Not applicable
British/Irish citizen with no passport (either the passport has expired or the individual has never held passport)	Yes	No	Not applicable
EU citizen with status under the EU Settlement Scheme	No	No	Yes – request share code
Individual with Indefinite Leave to Remain (ILR)	Normally no – if ILR is endorsed in a current valid passport then yes. Employers should note it is very rare for an ILR endorsement to appear in a current passport as ILR vignettes were phased out in early 2010s	No	Yes – request share code
Individual with 90-day entry stamp in their passport and have not yet collected their BRP	Yes – but will need to follow up with BRP share code once collected from the Post Office
Individual with Biometric Residence Permit (BRP) or e-visa	No	No	Yes – request share code
Individual with pending UK visa application	No	No	No For these individuals, employers will continue to use the Employer Checking Service

 

Useful links

• Code of practice on preventing illegal working (6 April 2022)
• Code of practice for employers: Avoiding unlawful discrimination while preventing illegal working (6 April 2022)
• Right to work checks: An employer’s guide (6 April 2022)
• Digital identity certification for right to work, right to rent and criminal record checks
• Home Office right to work portal
• Employer Checking Service portal

If you have any queries in relation to the ending of the modified right to work scheme, or in relation to immigration-related obligations generally, please contact Lisa Keating, Senior Associate in DLA Piper’s Employment group.

[1] BRP: Biometric Residence Permit; BRC: Biometric Residence Card; FWP: Frontier Worker Permit