Spotlight on compliance as UK and Ireland immigration digitises

The UK’s move toward a fully digital immigration system has accelerated this year, with Electronic Travel Authorisation now becoming a routine requirement for many visitors to 1930  the UK and employers increasingly relying on eVisas and online right to work checks. We’re being told these systems are simpler, more secure, and easier for employers to manage. But digitalisation does not remove employer responsibility and, for organisations operating across the UK and Ireland, the position is becoming more complicated, not less. We’ll hear from immigration specialists Shara Pledger and Louise Shaw about what that means in practice for HR and compliance teams.

In the UK, digital immigration checks are now becoming the norm, with employers increasingly relying on online status systems rather than physical documents. The move has generally been welcomed as a more streamlined and secure way of managing compliance, particularly in hybrid and remote working environments. But digitalisation does not remove the need for proper processes. Employers still need to follow strict right to work procedures, even where third party providers are carrying out checks on their behalf, and the penalties for getting it wrong remain significant.

The position also differs across the UK and Ireland. While Ireland is moving toward more digital immigration processes, the system is developing in a more gradual and piecemeal way, with employers in some cases still needing to understand and check physical immigration documents as part of right to work compliance.

So how are immigration systems changing across the UK and Ireland, and what does that mean for employers managing compliance and cross-border working? Earlier I spoke to immigration lawyers Shara Pledger and Louise Shaw and I began by asking Shara about the UK’s move toward digital immigration status.

Shara Pledger: “The move to digital status has on the whole, actually been quite encouraging and positive for employers. If we think back to before we started to go down this path of eVisas, employers would almost always need to see physical documentation from individuals and in a post-Brexit world and a post-Covid world, that’s not necessarily always the most straightforward thing to do, because individuals have different types of documentation and, indeed, they might not be in the office often enough for that to be an easy thing for employers to actually complete. So the move towards digital status from that perspective has actually been very welcome and Covid, in particular, really accelerated the approach that the government had to accepting things like remote checks and the ways of checking digitally which are now accepted as being the norm. The complication and the difficulty can come from individuals who, perhaps, are not permanently resident in the UK, or who are not seeking to stay permanently in the UK. So if you’re an organisation that receives a lot of business visitors, for example, the recent changes in approach to Electronic Travel Authorisation may cause some concern for travellers, or some confusion for travellers, and there will certainly be some instances of individuals not fully understanding what their requirements will be but, of course, those issues will hopefully smoothen out over time. Electronic Travel Authorisation will soon become the norm for anybody who was previously able to travel to the UK as a visitor without prior permission to do so and, of course, we see this replicated in other countries such as the United States with their ESTA programme as something that does work very smoothly.”

Joe Glavina: “What does this shift toward digital immigration mean for employers’ HR and compliance processes?”

Shara Pledger: “To an extent, this move towards digital status means that HR professionals and other professionals within organisations who need to be doing things like checking right to work or residence status in the UK have a more simple and streamlined job. The idea of having set ways of checking status in a way that is secure and digital means that it is far less likely for individuals to make mistakes with those documents, which are inevitable. As soon as there are humans involved in the process, there will always be an element of human error. Now, some of that was unavoidable within a manual document checking process. I might not be able to spot a really, really good fake of a British passport, for example, and there’s certainly no reason that other individuals who haven’t had specialist training would be able to do that on a reliable basis. So moving towards the digital status system certainly takes out that element of responsibility for identifying things like fraudulent documents. It does, however, replace that with a requirement to really adhere to what the current processes are. So that means, for example, an organisation that is engaging with an independent identity service provider doesn’t completely absent themselves from any responsibility for right to work checking. There is still a requirement to do what we call an ‘imposter check,’ so that video or face to face conversation to ensure that the individual whose status has been checked and confirmed digitally is indeed the person who is coming for work. Now the danger, I think, comes from organisations forgetting these steps because once you've got a system in place where you're engaging a third party in particular and thinking, well, great, we've done what we need to do, those documents are going to be checked securely by that professional organisation, it’s very easy to forget that there's also an element that still remains with the employer. So it's great as a baseline to kind of say fantastic, we’ll move to digital systems, those systems are safe, they're secure, they're straightforward, they're streamlined, but there is still a process to be followed and, of course, the penalties that arise from failing to follow right to work checking procedures are really high, and there's strict liability as well. So in the event that you have committed the offence of employing an illegal worker unless you've got really, really strong checks in place, you are facing a penalty. It doesn't matter if it was an honest mistake.”

Joe Glavina: “Can I ask you about cross border work you’re doing with clients, and your message to them Shara?”

Shara Pledger: “We certainly have conversations with a lot of employers who have bases in both the Republic of Ireland and the UK, and there can be a real ease there to forget that these are different jurisdictions, particularly from the point of immigration status and also right to work checks. So checks that you’ve done in the Republic of Ireland do not cover you for checks in the UK, for example. Where we have got that idea of digital status, the idea of slightly more fluid borders - obviously we’re in the Common Travel Area when we’re talking about the Republic of Ireland and the UK as well - it is very easy, quite dangerously easy, for employees to be traveling across that border and actually working in both of those jurisdictions but, of course, they do need the appropriate permission to be able to do that. So if you have individuals who are from outside of the UK, or who are from outside of Ireland, it is absolutely crucial to make sure that the proper checks have been undertaken to know for certain that those individuals do have the right to carry out the activity that they need to whichever jurisdiction it may be.”

So the UK is now well advanced in its move toward digital immigration status and online checks, but employers operating across the UK and Ireland cannot assume the two systems work in the same way. Ireland is also moving toward more digital immigration processes, but in a much more gradual and piecemeal way, with physical document checks still playing an important role for employers. So how does the UK’s position compare with the position in Ireland? I put that question to Dublin based immigration lawyer Louise Shaw.

Louise Shaw: “So Ireland is, I would say, that the processes are starting to become more digital but it’s not moving quite at the same pace to a fully digital immigration system as we’re seeing in the UK. In Ireland, the application processes are becoming much more digital. We’ve now got the employment work permits online portal - a modernised system came online only just last April - so we’ve had just about a year of that system and it is working really well for employers actually. It’s much easier now to log on, track employment permits, load documents for applications. The employer can initiate the application and then send it to the employee to complete and employers can also get support from the department, all within the one system. So that that is really good, but it’s not uniform across the board for immigration applications. So for other types of application, there are different portals that are online now, but there are different portals for different applications which can be quite confusing for applicants and some of the types of digital portals now are not quite up to speed with the number of documents, or the size of documents, for certain types of applications. So for example, an unmarried partner application is a very document heavy application and the portal that is used for that application can’t cope with the number of documents so then applicants are required to email those documents into the department and sometimes the emails get bounced because the email system can’t cope with the size of the documents so then we have to revert to post. So it is it is becoming more digital, but there are still situations where you might need to post documents in for an application, and there are certain applications that you can only do by paper form still. So it’s a much more piecemeal approach than in the UK. So that’s the applications. The other key difference between the UK and Ireland in terms of digitalisation is the right to work checks that employers need to do. So in the UK, it is now a fully online system, employers can log on and check somebody’s right to work and they will get confirmation within the online system that the person has the right to work whereas in Ireland the employer needs to still do a physical check of the documents and really understand what the documents are that they’re looking at, and understand the terminology on the documents, and understand whether that means the person has the right to work. In the case of an employment permit holder that means checking the employment permit itself, which is usually a letter, and check that’s valid, check that’s in date, check it’s valid for the work that the person will be doing, and also then the employer would need to check the residence card which is a separate document. That is the driving licence style biometric card. There is a similar type of card in the UK but, of course, it is a different card in Ireland and that card shows that the person has registered and has the right to reside as well as work in Ireland. So employers need to see both those documents and, as I said, understand what they’re looking at and understand whether it permits the employee to do the work in question. So we are moving towards a more digital system, I would say, but it is not a fully digital system by any means and employers can still get caught out by the need to check and understand the physical documents, particularly for right to work checks.”

So the key takeaway for employers is that digital immigration systems may simplify some aspects of compliance, but they do not remove the need for proper checks and processes. Employers still need to understand how the rules operate in practice and, for organisations working across the UK and Ireland, it is important to recognise that the two systems are evolving in different ways. If you would like help navigating those issues, please do contact Shara in the first instance – her details are on the screen for you.’