Selecting and using a third-party provider for right to work checks

What kinds of third-party providers assist with right to work checks?

The third-party market for assisting with right to work checks currently includes:

• IDSPs, who offer identity document validation technology (IDVT), and who may or may not be government-certified.
• Pre-employment screening/background check providers, some of whom may incorporate technology from an IDSP.
• Recruitment agencies.
• Immigration advisers.

Can my business outsource the right to work check process to a third-party provider?

In short, no.

This is because the Home Office’s guidance is clear that responsibility for right to work checks remains with you as the employer.

Can a third-party provider assist our business to obtain a statutory excuse against liability for an illegal working civil penalty?

An IDSP can assist you to obtain a statutory excuse by completing elements of a digital right to work check for holders of valid British or Irish passports or passport cards, and providing output from the IDVT identity check. This output directly forms part of the statutory excuse for digital checks.

However, as confirmed in an update to Employer's guide to right to work checks on 28 February 2023, other output from a third-party, even an IDSP, cannot be used to form part of the statutory excuse for an online or manual right to work check.

You may also seek advice on right to work compliance from another third-party such as recruitment agency or immigration adviser, however no statutory excuse would be available if that third-party directly performs any element of the check itself.

Can a third-party provider otherwise help us to minimise the risk of illegal working?

The main way a third-party provider can help is to increase the likelihood that a person who is not the rightful holder of right to work evidence (‘an imposter’) is identified before employment begins, or at a repeat right to work check. This is because the technology they use analyses biometric information more precisely than the human eye.

Where an imposter is identified pre-employment, the employer will have an opportunity to withdraw the employment offer. Where identification happens after employment commences, we would suggest seeking specialist immigration and employment law advice on potential liability for a civil penalty, and appropriate steps to take regarding the person’s ongoing employment.

Another way they can assist is to provide a process framework for an employer to follow to ensure that the employer completes all the necessary steps to obtain a statutory excuse. You should however be satisfied that none of the actions carried out by the third-party as part of the process are ones that must be completed by a direct employee or worker engaged by your business (‘your staff’) to obtain a statutory excuse.

How can we ensure we obtain a statutory excuse against liability for an illegal working civil penalty when working with a third-party provider?

You must ensure you do not outsource any elements of the checking process to a third-party except as provided for under the guidance for digital right to work checks.

For digital right to work checks, once you have the output from the IDVT identity check, you should still ensure that a member of your staff completes the visual check element of the process, and that evidence of the check is retained in line with the Home Office’s guidance.

For online checks, you should ensure that a member of your staff accesses the Home Office’s online employer portal for right to work checks, rather than any third-party, and that you otherwise follow the guidance on carrying out a visual check and retaining evidence.

For manual checks, you should ensure that a member of your staff takes a copy of the individual’s original documents at the time they see them, rather than relying on a copy the individual has provided to you or uploaded to a third-party’s portal beforehand. Again, you should otherwise follow the Home Office’s guidance on completing a visual check and retaining evidence.

How do I select a third-party provider?

The decision-making process around this is complex and you should consider the following:

• Whether you wish to use a certified IDSP to minimise the risk that a digital check will not be considered to meet the Home Office’s medium level of confidence requirement for identity checking.
• Whether you wish to use a third-party to assist with digital checks only, or to support online and manual right to work checks as well.
• Ensuring the process used by you and any third-party will enable you to obtain a statutory excuse against liability for an illegal working civil penalty.
• What other services the third-party provider offers, e.g. pre-employment background screening, DBS checks, HR systems etc.
• Cost.

If you require assistance with right to work compliance, including selecting or reviewing third-party providers for right to work checks, please get in touch with a member of our Immigration Team.