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Update on digital identity checks for right to work purposes

Posted on 22/02/2022 by Lewina Farrell

Right To Work

​Digital right to work checks have been in place since the beginning of the pandemic, this has not only made it easier when face to face meetings have not been possible but has also enabled candidates to get into work more quickly, whilst ensuring compliance.

At TPP we support many temporary workers, so have supported the REC’s campaign for this to remain in place permanently. The government have announced this will now be implemented permanently from the 1 October 2022.

Lewina Farrell, TPP’s Legal Manager has provided an update on what these new digital checks mean for employers.

Employers and recruiters must ensure that all employees and temporary workers have the right to work (RTW) in the UK. They do this by checking from a list of acceptable documents - these checks can be done manually or digitally.

The check must be done correctly, and records kept, to be able to rely on the “statutory excuse” i.e. proof that the employer has taken the correct steps to protect themselves against employing an illegal worker. Even if a worker does not have the right to work in the UK, an employer will not receive a civil penalty (a fine of up to £20,000 per illegal worker) if they can rely on the statutory excuse.

What’s happening? Employers and recruiters can check non-UK and non-Irish nationals’ RTW using the Home Office’s free online “view a job applicant’s right to work details” service. At the moment they cannot use the digital service for British or Irish nationals, but from 1 October 2022 employers and recruiters will be able to carry out digital identity checks on British and Irish nationals for the purposes of right to work checks.

Employers and recruiters will still be able to do manual checks if they wish but from 1 October 2022 when doing digital right to work checks they will have to:

  • Use a certified Identity Service Provider (IDSP) to validate an individual’s identity documents to confirm their right to work in the UK;

  • Provide appropriate training and guidance to their staff on how to use an IDSP;

  • Comply with the Home Office’s RTW complete identity evidence verification criteria and wider RTW requirements.

This change will be backed up by the UK Digital Identity and Attributes Trust Framework (UKDIATF) which will set out the conditions for certification of IDSPs. Interestingly, at the time of writing this blog the government hasn’t published the list of certification bodies. Also, the UKDIATF is still in “alpha” phase and will not move to the live phase until the legislation setting out the changes is effective.

IDSPs will be certified against the version of the UKDIATF in place at the time of their certification. To become certified they must meet the technological conditions set out for certification and have appropriate information security systems in place to protect the personal data they process. IDSPs will be audited annually and will have to undergo recertification every two years.

All identity checks for RTW purposes must achieve a minimum Medium Level of Confidence (LOC). Employers can choose to use IDSPs who provide a higher LOC if for example, they also need to do a Standard or Enhanced DBS check, but this isn’t necessary for RTW checks.

Risk and liability: It is expected that digital checks will increase the security of identity and RTW checks. But the responsibility for making the check remains with the employer (or recruiter for temporary workers) and they must ensure that their chosen IDSP complies with the specifications, including the LOC.

When using an IDSP, an employer will be a “relying party” i.e. they are relying on the IDSP to do the check to the required standard. Employers will obtain the necessary statutory excuse only if they use a certified IDSP. They will not have the statutory excuse if they use a non-certified IDSP. So when signing up to an IDSP’s service check the risk and liability and indemnity clauses.

Cost: IDSPs will be able to charge for their services but we don’t yet know what those charges might be. But charging for checks on UK and Irish nationals is in direct contrast to the free digital check when checking the status of non-UK and non-Irish nationals (and which service will still be free).

For more information see Annex F of the Home Office’s Employer right to work checks supporting guidance.

No more manual checking of BRCs, BRPs or FWPs: Also from 1 October 2022, employers and recruiters will no longer be able to do manual checks of Biometric Residence Cards, Biometric Residence Permit or Frontier Worker Permits. From that date, only digital checks will be valid.

TPP is an REC audited member, so you can be assured that we have taken all measures possible to verify and check that temporary workers are fully compliant, such as reference checks, full registrations and right to work checks.

  • You can be confident you are using an REC Audited supplier

  • They have gone the extra mile in levels of demonstrating compliance and work to best practice standards

  • There are a host of additional checks they have undertaken in order to achieve the REC Audited mark of distinction

  • They are helping to build the best recruitment industry in the world

For further recruitment advice, TPP has a range of resources available to support organisations through our Resources & Support Hub.

This article is for information purposes only and is not intended to replace formal legal advice.