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Education briefing - UK Immigration: Right to Work check changes from 6 April 2022

  • United Kingdom
  • Education - Briefings

19-01-2022

 

Education institutions, like all UK employers, need to carry out a right to work check on all staff before they commence work. It is important to do this in order to have a statutory excuse against liability for a civil penalty, in the event they are found to have employed someone who is, by reason of their immigration status, prevented from carrying out the work in question.

Whilst institutions will be familiar with the current rules, three important changes are due to take place with effect from 6 April 2022, in relation checks for biometric card holders, the ending of the temporary adjusted checks due to Covid-19 and the introduction of Identification Document Validation Technology.

Right to work checks for biometric card holders from 6 April 2022

The Home Office’s guidance note on right to work checks has recently been updated to reflect that from 6 April 2022, employers will no longer be able to carry out a manual right to work check on those who hold a biometric residence permit, biometric residence card or a frontier worker permit (biometric card holders).

A Biometric Residence Permit is provided to individuals who apply to come to the UK or extend their UK visa for longer than 6 months, and to those who apply to settle in the UK. A Biometric Residence Card is provided to non-EEA family members of an EEA citizen. A Frontier Worker Permit is provided to EEA citizens who are resident outside the UK but are economically active (employed or self-employed) in the UK.

Currently such checks can be carried out manually or online and the guidance confirms that up to and including 5 April 2022, employers can continue to conduct manual checks on physical cards for evidence of a right to work. During this time, employers cannot insist individuals use the online service, and should not discriminate against those who wish to use their physical card. Employers can ask individuals if they would like to use the online service.

From 6 April 2022, however, employers must carry out an online right to work check (using a specific gov.uk portal and share code process) for all checks undertaken from this date onwards in order to establish a statutory excuse/defence. Although no retrospective right to work check is required in respect of those who used a biometric residence permit, biometric residence card or a frontier worker permit to prove their right to work during a manual right to work check prior to 6 April 2022, provided those documents/checks were permissible under the relevant guidance and established a statutory excuse at the time the check was taken.

As a consequence, we recommend that action is taken to update any right to work guidance notes and checklists to ensure those responsible for undertaking right to work checks in practice appreciate the change in rules from 6 April 2022.

COVID-19 temporary adjusted right to work checks

Temporary adjustments to the right to work checks were first introduced as result of the Covid pandemic on 30 March 2020 – and have been extended on several occasions since. These temporary measures will, however, finally come to an end on 5 April 2022.

The updated guidance confirms that employers will continue to have a defence against a civil penalty if the check they have undertaken during the period 30 March 2020 to 5 April 2022 was carried out in the prescribed manner or as set out in the COVID-19 adjusted checks guidance. However, any individual identified with no lawful immigration status in the UK may be liable to enforcement action.

Identification Document Validation Technology

In addition, the Home Office has recently announced that employers will be able to use certified Identification Document Validation Technology (“IDVT”) to carry out digital identity checks on new employees in the future. This will include candidates previously outside the scope of the Home Office’s current online services, such as British and Irish citizens. This change, once finalised and implemented, is likely to come into force on 6 April 2022.

IDVT technology establishes the authenticity of documents such as passports and biometric residence permits for identity verification purposes. It will not be mandatory for employers to use IDVT as manual checks of physical documents, together with checking the status of biometric permits online, will remain permissible.

Whilst the information available on the new process remains at this stage limited and subject to change, it appears that the new IDVT process requires the following:

1. IDVT products to be purchased by employers from a certified provider, the approved list of which is currently being compiled by the Home Office.

2. The prospective employee can use IDVT to upload an image of the identity document or read the biometric chip within the relevant document, which the technology will compare with either the photograph of the individual in the document or an image of the holder provided by a live video stream.

3. IDVT providers record the necessary information which will include the individual’s name, date of birth, contact details, employment provisional start date, identity document details, the facial image and photograph.

 4. Prospective employees may view the information that has been captured by the provider and given to the prospective employer, who then reviews the information supplied by the IDVT provider to complete the right-to-work check.

Employers will only be able to use a certified IDTV provider in order to establish a statutory excuse where the check has been carried out on one or more of the acceptable documents prescribed in legislation. IDVT will not be suitable for every current List A or B documents and in those circumstances an in-person check will need to be made. The cost of the use of IDVT services will be borne by the employer and it is envisaged this may vary widely, possibly up to a fee of £70 per check.

Next action

The introduction of the COVID-19 adjusted right-to-work checks during the lockdown period has, from our experience, been popular amongst institutions. The prospect of being able to utilise IDVT technology in line with future Home Office guidance is, we think, likely to also be a popular way of managing the process in future, subject to final confirmation of how this will operate and the cost.

Institutions should continue to check guidance from UK Visas and Immigration on this subject as information continues to be released and continue to ensure they are familiar with the documents which require a mandatory online right to work check from 6 April 2022.

View our Immigration UK - Right-to-work in 2022 training course which is suitable for HR, global mobility and legal professionals who oversee, operate or implement right-to-work checking processes. The modules do not presume prior knowledge of immigration law.