Home Office releases further details of digital right to work check tool

On 17 January 2022, the Home Office published an update to the Employer right to work checks supporting guidance (also called An employer’s guide to right to work checks), to include a new Annex F. This covers digital identity verification guidance for employers and identity service providers (IDSPs) regarding the implementation of a new Identity Document Validation Technology (IDVT) from as early as 6 April 2022. See our previous article for background information on IDVT. 

The Department for Digital, Culture, Media and Sport also published related information on how technology companies can become certified as an IDSP. 

What documents and verifications will IDVT cover?

IDVT will only be available for verifying the identity of the following documents:

• Valid British passports
• Valid Irish passports
• Valid Irish passport cards

The technology will provide a five-part identity checking process:

• Getting evidence of the claimed identity (i.e. uploading a copy of the passport or passport card)
• Checking the evidence is genuine or valid
• Checking that there is a history of the claimed identity
• Checking whether the claimed identity is at high risk of identity fraud
• Checking the identity belongs to the person claiming it

The guidance confirms that the last stage will involve the employer making an image of the individual claiming a right to work, either in at an in-person meeting or on a video call, and providing this to the IDSP with a confirmation it is a true likeness of the individual. It would seem likely that the IDSP would then check the image against the biometric information recorded in the passport or passport card to see if they match.

Employers will still be able to accept expired British and Irish passports (including passport cards) for right to work check purposes, but will be required to check these manually. They will also still need to carry out manual checks on other physical documents where an employee or proposed employee is eligible to rely on them, or needs to use them to confirm a change of name or gender. 

Separately, employers should note that from 6 April 2022, manual checks will no longer be acceptable for holders of biometric residence permits (BRPs), biometric residence cards (BRCs) and frontier worker permits. These will have to be checked online.

Although following the implementation of IDVT employers will be able to carry out the majority of right to work checks either using IDVT or the Home Office’s online right to work check systems, they will need to put processes in place to handle and check original documents once COVID-19 adjusted checks end. This is currently due to be after 5 April 2022. 

It remains to be seen whether employers will be content to carry out manual checks on an ad hoc basis due to the relatively low volumes this would involve. It is possible they may request a further extension to adjusted checks if the logistical challenges associated with the rise of remote and hybrid working patterns are considered still to be significant despite the availability of IDVT.

What else does the new guidance tell employers about using IDVT?

The guidance is clear that employers who use IDVT provided by an IDSP will still ultimately be responsible for each right to work check carried out. However, an employer will be able to rely on a verified identity from a certified IDSP as providing the required level of confidence for the purposes of claiming a statutory excuse against being liable for an illegal working civil penalty.

This would seem to suggest that employers will be able to opt out of using IDVT if they choose. 

When will IDVT be available?

The new guidance goes no further than confirming that enabling legislation is due to be in effect from 6 April 2022. This still leaves ambiguity around whether IDVT will be ready to go live from or after this date.

What will using IDVT cost?

The updated guidance does not provide any cost information, so this will need to be confirmed at a later date.

Need more information?

We will continue to monitor for further developments and provide updates as more information becomes available.We are also running our next Immigration Law Academy on 29 and 30 March 2021, which includes a detailed analysis of the current and upcoming requirements for right to work checks. For further information and to register, click here.

If you have any specific queries around these changes or right to work requirements, please get in touch with a member of our Immigration Team.