Digital right to work checks: what employers need to know

1st March 2022

From 6 April 2022, employers and landlords will be able to use certified Identification Document Validation Technology (IDVT) service providers to conduct right to work checks and right to rent checks on their behalf for those who are not in scope to use the Home Office online services including British and Irish citizens. This development will align with the Disclosure and Barring Service’s (DBS) proposal to enable digital identify checking within their criminal record process.

Following the positive feedback received about the temporary ability to conduct right to work checks remotely during the COVID-19 pandemic, the Home Office initiated a review of the availability of specialist technology to support a system of digital checks.

Government Guidance was published on 17 January 2022 (and updated on 15 February 2022) covering issues such as how providers become certified and who the certified bodies are.

What is IDVT?

IDVT allows people to verify their identity remotely and prove their eligibility to work (or rent). The COVID-19 pandemic has illustrated the need to digitise the system to carry out these checks remotely. Enabling the use of the IDVT for right to work checks will help to support long-term post-pandemic working practices, accelerate the recruitment and onboarding process, improve employee mobility and enhance the security and integrity of the checks.

What does this mean for employers?

It will provide more consistent and secure methods of identification therefore reducing risk and allowing employers to recruit in a safer way. It will also avoid the chance of human error occurring whilst performing these checks which again reduces risks.

It could  also  reduce the costs of recruitment as the working time and hours spent undertaking checks will be significantly reduced as employers using IDVT service providers will no longer need to physically examine documents.

The Guidance makes it clear that employers who use IDVT provided by a certified service provider will still ultimately be responsible for each right to work check which needs to be carried out. The employer will, however, be able to rely on a verified identity from a certified service provider as providing the required level of confidence for the purposes of relying on the statutory excuse against being liable for an illegal working civil penalty. However, if employers hire a new employee who is using fake or borrowed ID that could have been picked up if they had used these checks, they could be fined £20,000 per new employee.

However, if employers wish to use their own processes they will need to become certified service providers themselves.

How to become certified?

The Guidance includes a step-by-step process about how providers become certified:

  • 1. Providers who wish to become certified must firstly decide whether they want to be certified against:
    • a) the Right to Work and Right to Rent Schemes only;
    • b) the DBS Scheme only; or
    • c) both.
  • 2. Providers must engage with one of the selected certification bodies and agree a contractual relationship for completing the assessment process. Currently the certification bodies are being selected and a list will become available once the selection process has been completed.
  • 3. Providers are assessed by a combination of desk reviews and on-site audits depending on the scope to be assessed.
  • 4. After the audits have taken place, certification bodies will advise the Department for Digital, Culture, Media and Sport (DCMS) and the provider undergoing certification of their recommendation in regard to certification.
  • 5. DCMS will review the outcome of the assessment process and, if all requirements have been met, the provider’s name, contact details, and information regarding their certification will be published on its webpage. Employers, landlords and other relevant providers interested in procuring digital identity services will be able to see which providers have been approved.
  • 6. Certification is a time-limited process and providers will need to undertake an annual surveillance audit and biennial recertification to remain on the list of certified providers.

It is likely that the process will take an estimated 4-8 weeks to complete. However, the length of the assessment process will be agreed between the provider wanting to become certified and their selected certification body.

Providers that have become certified must become re-certified every two years.

There remains to be further clarification on this new procedure. With the certification process taking between 4-8 weeks and the scheme going live in less than two months employers need to make some important decisions imminently especially if they decide to become certified service providers themselves.

What must employers do from 6 April 2022 in relation to employees taken on from that date?

The end date of the temporary adjusted right to work checks introduced at the start of the COVID-19 Pandemic permitting employers to check right to work documents using a video call and email has now been deferred from 6 April until 30 September 2022. The Government says that this is to ensure that employers have sufficient time to develop relationships with identity service providers and make the necessary changes to pre-employment checking processes. It is also to allow employers to put measures in place to enable face to face checks if they do not want to adopt digital checks for British and Irish citizens.

There will be four options in relation to right to work checks:

  • 1. Foreign nationals who have a biometric residence card or permit or have been granted status under the EU Settlement Scheme must be checked using the existing online service only. Checking the physical card will no longer be a valid right to work check.
  • 2. Employers will be able to use certified Identity Service Providers (IDSPs) to complete right to work checks for British and Irish nationals, as long as they hold valid passports. This will be an alternative to manual checks and the IDSPs will complete these digital right to work checks on behalf of employers for a fee.
  • 3. Manual checks for British and Irish nationals, that is checking the physical documents in person.
  • 4. Checks using the adjusted method of right to work checks on British and Irish nationals and other eligible individuals but only up to 30 September 2022. There will be no need to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 30 September 2022.

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