28 February 2022

The Home Office has announced a series of changes to right-to-work (‘RTW’) checks which come into effect this year. These include the introduction of mandatory online checks for certain individuals, the launch of a new RTW check system for British and Irish citizens and a deferment of temporary adjusted RTW checks. In this article, we set out the changes that employers must comply with.

Mandatory online RTW checks for certain individuals from 6 April 2022
From 6 April 2022, employers must carry out online RTW checks for individuals holding a biometric residence permit (‘BRP’), biometric residence card (‘BRC’) or frontier work permit (‘FWP’) using the Home Office’s online RTW check service. From this date, it will no longer be permissible to conduct RTW checks using a physical BRC, BRP or FWP.

To complete RTW checks for such individuals, employers will require the individual’s date of birth and a valid RTW share code, which the individual must generate using the online ‘Prove your right to work’ portal. The share code is valid for 30 days.

New RTW checks for British and Irish citizens from 6 April 2022
From 6 April 2022, a new online system for carrying out RTW checks will also be introduced for British and Irish citizens with a valid passport (including an Irish passport card). This will not involve the use of a share code (as above). Instead, individuals will be able to upload images of their passports via a certified Identity Service Provider (‘IDSP’) to verify their identity remotely and prove their eligibility to work.

It will be a legal requirement for employers and IDSPs to apply identity evidence verification criteria set by the Home Office whilst using these services. Employers must:

• ensure the IDSP is certified to the required standards;
• provide appropriate training and guidance to their staff; and
• discharge their duties in accordance with Home Office’s RTW complete identity evidence verification criteria and in accordance with existing wider RTW legislation and guidance.

Employers would not be mandated to use the IDSP system and can continue to carry out manual RTW checks on British and Irish citizens.

End of adjusted RTW checks postponed to 30 September 2022
The end date for temporary adjusted right to work (‘RTW’) checks has been deferred to 30 September 2022 (inclusive). This does not affect the new RTW check measures which are due to come into effect on 6 April 2022 (see above).

As a result of the deferment, employers can continue to:

• conduct RTW checks via video calls;
• receive scanned or photographed documents from job applicants and existing workers (rather than originals); and
• use the Home Office Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.

The Home Office said it had decided to postpone the end date to ensure employers have sufficient time to develop commercial relationships with identity service providers (see above), make any necessary changes to their pre-employment checking processes and carry out on-boarding of their chosen provider.

Retrospective checks
The new rules relate to RTW checks for employment commencing from 6 April 2022. Employers who have employed an individual and carried out a valid RTW check before 6 April 2022 will not be required to carry out a retrospective check in accordance with the new RTW check rules set out above. In addition, employers who employed an individual and carried out an online RTW check up to and including 30 September 2022, do not need to check the individual’s physical documents. In these circumstances, employers should establish or retain a statutory excuse from having to pay a civil penalty for employing a person who is not permitted to do the work in question.

Summary of key changes and dates

Get in touch
To learn more about forthcoming changes to UK immigration law, see our website, contact your assigned LDI lawyer or email enquiries@lauradevine.com.