The end of adjusted right to work checks (it really is the end, this time!)
From 1 October, it has no longer been permissible to carry out remote right to work checks.
As a result of the pandemic, in March 2020 the Government modified the right to work check regime to enable businesses to carry out remote right to work checks; employers were permitted to review electronic copies of relevant documents (rather than originals) and conduct checks of those documents via a video call. The end date of adjusted right to work checks was extended numerous times but this time, it seems, it really is the end!
The scheme came to an end on 30 September 2022. Note that there’s no requirement to carry out retrospective checks in respect of any staff who had an adjusted check between 30 March 2022 and 30 September 2022.
From 1 October, the options are:
In-person manual right to work check
To properly conduct a manual right to work check, there’s a three-step process:
- Ask the candidate to provide you with original documents. A list of acceptable documents can be found here.
- Arrange a meeting with the candidate to check that the documents are valid in their presence. It remains permissible to check the visual appearance of the candidate via video call.
- Take a copy of the documents checked and clearly record on the copy: “Right to work check undertaken on [DATE]”. Retain the copies for two years after employment has ended.
Since 6 April 2022 it’s no longer permissible to carry out manual checks of Biometric Residence Cards, Biometric Residence Permits or Frontier Worker Permits; the Home Office’s online checking service should be used instead.
Online check
Ask the candidate for their date of birth and share code. You must then:
- Visit the Home Office’s checking service;
- Check that the photograph that appears online is of the candidate, in their presence (either in person or via video call);
- Retain a copy of the ‘profile’ page confirming the individual’s right to work for two years after employment has ceased.
Employer checking service
If the candidate cannot produce any acceptable documents or produce a share code, for example, if they have a pending application or if they provide a certificate of application or application registration card, you must use the Employer Checking Service to obtain a positive verification notice, which will provide you with a statutory excuse for the time set out in the notice, at which point a further check should be conducted.
Use an Identity Service Provider (IDSP)
Since 6 April 2022, it has been open to you to engage a certified IDSP to utilise their Identity Document Validation Technology (IDVT) to verify the identity of candidates who are British and Irish citizens who hold a valid passport / ID card.
The process is as follows:
- The candidate uploads an image of themselves and a copy of their passport or ID card to the IDSP’s software.
- The IDSP produces a report about the authenticity of the document and sends it to you.
- You must retain a clear copy of the report in a format that cannot be altered for two years after employment ceases.
- Importantly, it’s your responsibility to check that the information set out in the IDVT report matches the appearance of the candidate and to make and retain a note confirming:
- the appearance of the candidate matches the image in the IDVT report;
- which employee carried out the visual check;
- the date of the visual check.
Again, this record should be retained for two years after employment ceases.
It’s important to bear in mind that you remain responsible for ensuring that the check has been carried out correctly and will only obtain a statutory excuse if you reasonably believe that to be the case. For this reason, it’s important that you only use a certified IDSP.
Should you have any questions about right to work checks or business immigration in general, please get in contact with our business immigration expert, Emma Cousins, Senior Associate at emma.cousins@torquelaw.co.uk.