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New right to work guidance: Trouble in IDSParadise

13th Mar 2023
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Changes to the ‘Employer’s guide to right to work checks’ published on 28 February 2023 affect right to work checks using the share code system and documentation retention requirements. The updates make clear the limited utility of Identity Service Providers (IDSPs) and raise the spectre of increased immigration enforcement action.

Share code system checks

Changes to the right to work checks using the share code system include the following:

  • Employers can use the share code system to check the right to work of e-Visa holders who have a pending application for immigration permission; and
  • If the image of an individual on their digital profile is showing incorrectly or is of poor quality, an employer should advise them to update the image on their account.

Document retention

Employers should securely destroy copies of right to work documentation two years after an individual stops working for them.

Identity Service Providers

The Home Office introduced an allowance last year for employers to rely on Identity Service Providers (IDSPs) to check the right to work of British and Irish passport holders. The allowance was only ever going to benefit large organisations with high volumes of checks due to cost. Even for large organisations, the benefit is limited because employers are still responsible for ensuring that IDSPs conduct checks correctly and that the individual for whom an IDSP provides a report is the same as the person who turns up for work.

Employers are able to check the right to work of workers with e-Visas via videoconference using the share code system. The IDSP allowance was introduced to equalise remote right to work checking processes for British nationals, who otherwise have to show up in person with their original documentation, e.g. a British passport, for an employer to conduct compliant right to work check.

The latest guidance does not change IDSP checking requirements but emphasises that employers will not benefit from a statutory excuse from civil penalty if they rely on a checks by IDSPs for workers other than British and Irish citizens who hold valid passports.

When the IDSP allowance was introduced last year, I heard reports from employers that IDSPs were offering to conduct all right to work checks, not just checks on British and Irish passport holders. Some employers seemed not to realise that they would not establish a statutory excuse when using IDSPs for checks other than on holders of current British and Irish passports.

The Home Office’s 28 February 2023 amendments to the ‘Employer’s guide to right to work checks’ underline the limitations of IDSP checks to employers, perhaps because of the kind overstepping by IDSPs in their service offering that I witnessed last year.

The updated guidance clarifies the limitations of using an IDSP: when an employer is checking that the photograph and biographic details on the Identity Document Validation Technology (IDVT) check provided by an IDSP are consistent with the individual presenting themselves for work, the employer should be doing so in person or via video call. For the first time, the guidance confirms that employers using IDSPs still have to set up a video conference or in person meeting to verify that the check matches the individual.

The changes to the guidance emphasise that an IDSP is responsible for assuring the employer that an individual being checked has a current British or Irish passport. An expired passport cannot be used for an IDSP check, though it can still be used to establish a statutory excuse from civil penalty via a manual check on the original physical document. For example, an employer can ask a British national with an expired passport to post the passport to them, then the employer can check the original passport by video conference.

However, an employer must be satisfied that the IDSP has completed the check in line with the requirements in order to obtain a statutory excuse from civil penalty. The employer retains overall responsibility for each right to work check.

As the IDSP system settles in, amendments to the guidance make clear the limitations of this newest form of right to work check.

Increased immigration enforcement

Although the guidance reiterates that retrospective checks are not required such that employers continue to benefit from a statutory excuse for COVID adjusted checks correctly conducted, the Home Office warns that an individual identified with no lawful immigration status in the UK may be liable to immigration enforcement action.

The warning comes on the heels of a general increase in immigration enforcement action. We have seen an uptick in the Home Office taking action against businesses failing to fulfil sponsor duties.

The updated right to work guidance now states that the Home Office’s Immigration Enforcement Checking & Advice Service is offering online training on right to work checks and document fraud. It will be interesting to see whether users of the new training will be exposing themselves to enforcement action as has historically been the case with UK Visas and Immigration service offerings

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