Don’t over-rely on IDSPs for right to work checks, warns lawyer

Employers may be delegating too much of their right to work checks to third-party identity service providers, leaving themselves exposed to civil worker penalties.

This is the warning from immigration specialist, Shara Pledger, in her article for Out-Law highlighting some confusion over the services that IDSPs are allowed, leaving employers unwittingly exposed to    financial penalties. She says: ‘A significant number of employers may be delegating checks on British and Irish workers to IDSPs, mistakenly believing that doing so means they do not need to undertake any checks themselves’. The risk is the employer’s statutory excuse against a civil penalty in the event that an employee is found to be working illegally falls away if the checks are not conducted in line with the rules.

Since 1 October manual checks have entailed employers reviewing and copying original identity documents, necessitating either a return to face-to-face checks or delivery and return of documents. The only way to avoid that inconvenience is to engage an IDSP but, as Shara points out, some providers appear to have oversold what they can do. 

She says: ‘IDSPs cannot verify documents that are not current British or Irish passports, or Irish passport cards – and cannot confirm that the person arriving with the employer for work is the same person who has been verified. The employer must still conduct an ‘imposter check’ in person or via videocall to confirm a match between the prospective employee and the IDSP report.’

Further, ‘IDSPs cannot conduct right to work checks for British or Irish nationals without the stated documents, and manual document checks must be conducted by the employer directly.  IDSPs also cannot conduct right to work checks for non-British or non-Irish workers. The IDVT service operated by IDSPs is only applicable to current British or Irish passports, or Irish passport cards.’

On hiring migrant workers she says: ‘Employers should use the Home Office online share code system coupled with an in-person or video call meeting to confirm a match between the Home Office report and the worker. Checks carried out by a third party are invalid unless completed by an IDSP. The Home Office digital checking system for migrant workers is not IDVT and has no associated IDSPs. As a result, it is our recommendation that checks on non-British/non-Irish workers are conducted by the employer directly, as are all imposter checks regardless of nationality’.

So, that’s the advice, but we recognise that for some businesses that will bring logistical challenges for HR so let’s consider that. Alex Wright works with Shara in the immigration team and earlier he joined me by video-link. I asked Alex about that manual checking:  

Alex Wright: “So, if you're employing somebody who does not have access to a document that allows a digital Right to Work check to be undertaken, you're going to have to bring them into the office for a face-to-face check and look at them alongside the copy of the document. There are some concessions. So, for example, if the person is unable to get to your office but wants to, for example, courier their ID documents to you for review, and then you view them remotely whilst checking their document and then send that passport back to them, that is absolutely fine, you can do a check on that basis. But then a firm never really needs to be thinking about, well, I'm taking hold of someone's personal property and private information, you don't want to be in a position where you're losing someone's passport as part of a Right to Work check. So, if that is something that a company is going to be doing, they probably want to put processes in place to make sure that they're storing those documents safely and returning them quickly.”

Joe Glavina: “As we know, in many cases large employers are going to want to look to as a service provider to help them with carrying out checks. Where are we with that? Are there plenty to choose from? Is it expensive?” 

Alex Wright: “So for international workers, employees can carry on doing the same digital checks through the Home Office as they've been doing for the best part of two years now. It's British and Irish workers where these new systems come in, the new IDVT System. There are a number of providers who are assisting with this right now, there's not that many, there’s a list, you can check it out. But to be honest, it's not particularly wide-ranging at the moment - we're expecting it to grow, but it's very much in its infancy. So, we're expecting that larger employers, for the meanwhile, may well need to revert to manual checks for British and Irish workers until this becomes more widely available.”

Joe Glavina: “The Home Office recently published updated guidance on this, Alex. Is there anything in there which surprised you?” 

Alex Wright: “The only thing that really surprised us in the guidance was this ability to post your documents in and then have a remote check. We thought it was going to have to be, you know, a manual check which would mean that you had to be in person alongside your document, but we now know that can mean that your documents can be with your employer, and you can be viewed remotely which will be of benefit to some people who find out logistically challenging.”

Joe Glavina: “Final question, Alex. Going back to those ID service providers. Is that an expensive route for employers to go down and does the cost vary depending on which one you choose?”

Alex Wright: “So, the cost of IDVT varies. The Home Office guidance ranges from a small amount of pounds to tens. So, realistically, this is something that it might be worth larger employees talking to service providers about, see what arrangements they come up with, and if they are going to be doing bulk purchasing of it, see if there are more favourable rates available. But at the moment, different providers are allowed to provide differently, there are a range of price options.” 

That article by Shara Pledger warning about delegating too many right to work checks to IDSPs is called: ‘UK employers risk delegating too much of their right to work checks’. We have put a link to it in the transcript of this programme. 

LINKS
- Link to Out-Law article: ‘UK employers risk delegating too much of their right to work checks’