The Home Office has issued new guidance to help employers conduct right to work checks lawfully and so prevent the risk of incurring a civil penalty. It’s important because, by carrying out right to work correctly, employers should be able to rely on a statutory defence against allegations of compliance breaches and be able to demonstrate that they have taken consistent and compliant measures to ensure that they are only hiring individuals with permission to work in the UK.
Employers can conduct their right to work checks in person or through compliant processes through an Identity Service Provider, an IDSP, but the Home Office is concerned that some providers are getting it wrong, misunderstanding the scope of the checks they can make, hence this new guidance. The type of check will depend on a number of different factors, including the worker’s nationality, but the key point is that all right to work processes should be compliant and implemented consistently and correctly. That isn’t happening enough it seems.
The guidance comes with a warning. If an employer is found to be employing someone illegally and they have not carried out the prescribed checks, they may face sanctions including a civil penalty of up to £20,000 per illegal worker, or criminal penalties (imprisonment and/or unlimited fines).
So let’s get a view on the new guidance. Alex Wright is an immigration specialist and earlier he joined me by video-link from Manchester. I started by asking Alex for the background to this:
Alex Wright: “So last year the Home Office made a number of changes to how the right to work schemes operated and the different types of checks that were available and after a lot of confusion and changes over COVID they're trying to, essentially, sort their regime out and come up with one solid model except, being the Home Office, they didn't. So essentially, we now have three different models of checking ID. There are some circumstances where you still can manually check a document, in limited circumstances. There are people who are British or Irish nationals where there is a new system called IDSP, ID service providers, where a third party can check the right to work of British or Irish nationals for you, and then there is the Share Code scheme where international workers who might hold e-visas or biometric residence permits can produce share codes QR codes effectively, that their employers can check to confirm their right to work and ongoing status.”
Joe Glavina: “As I understand it, there are limited parameters within which IDSP is meant to operate and the problem is it’s being applied too widely by the service providers. Is that right?”
Alex Wright: “Yes, that would be a fairly good summary of it. So, IDSPs came in as a pilot scheme last year, whereby if you had British or Irish nationals and you want to check their right to work, it didn't have to necessarily be done by the employer, they could go to an approved third party who the employee had a contract with, who could then use facial recognition technology, and passport scanning, to confirm that those people were British and Irish nationals and, therefore, protect the employer from any allegations of unlawful working if they did the checks. One of the things that we noticed over the past year is that a number of employers were also using these IDSP providers to run checks on non-British and Irish nationals to confirm their right to work and, obviously, they were able to run the checks, they were able to come back with share codes and confirmation of right to work, but it was mentioned in the Home Office guidance, it was stated, that that whilst IDSPs can run checks on non-British and Irish nationals, those would not provide a statutory excuse for an employer should there be any allegation of illegal working. So, our recommendation to employers has been, and continues to be, if you have either workers who are not British or Irish, if someone's checking the share codes and the right to work checks, it would be ideal if that was yourself, and not an IDSP because that will not provide you with an excuse should any allegation of illegal working arise. If you've done it yourself then it will protect you in those circumstances. What the Home Office have done in the most recent guidance is they've made that very explicit. So rather than sort of just leaving it in the old guidance documents, they put that front and centre in this new statement of changes and they've made it very clear to employers that if you're not doing your checks on your non-British and Irish national workers yourself, they will not protect you should something go wrong in the future.”
Joe Glavina: “If the Home Office is saying that some service providers are getting this wrong, do employers need to address that by contacting them and checking they know what they are doing?”
Alex Wright: “I think it's actually easier for employers in those circumstances. Any checks have been done on British and Irish nationals, those are absolutely fine and there's nothing that they need to do. If they have asked IDSPs to run checks on non-British and Irish nationals, the most sensible thing they can do is simply re-run those checks themselves, and then they'll be covered. I think the IDSPs, if they weren't already aware of this, will be very aware of it now and certainly there were IDSPs who, even when they ran checks on non-British and Irish nationals, did put disclaimers on them stating, whilst we've run a check for you, this will not protect you in case of a Home Office investigation. So, I think plenty of the providers are already aware of this and if not, they certainly are now. I think the most sensible thing to do would be, if you've gone down that route, if the IDSP provider hasn't noticed, just run your own checks on your non-British and Irish employees who have come in since these checks started being an option.”
The Home Office guidance was published on 28 February and applies to right to work checks conducted on or after 26 January 2023 to establish or retain a statutory excuse from having to pay a civil penalty for employing a person who is not permitted to do the work in question. We’ve put a link to it in the transcript of this programme.