Right to work checks: new regulations enabling digital identity checks and new codes of practice have been published

The Immigration (Restrictions on Employment and Residential Accommodation) (Prescribed Requirements and Codes of Practice) and Licensing Act 2003 (Personal and Premises Licences) (Forms), etc, Regulations 2022 came into force on 6th April 2022.

This regulation has changed some elements of the ‘right to work check scheme’, which places an obligation on employers to check the immigration status of prospective employees, in order to ensure whether they have the right to work in the UK.

With effect from 6th April 2022, employers can now use identification document validation technology (‘IDVT’) service providers to digitally verify the identity of British and Irish citizens with valid passports, as opposed to undertaking manual right to work checks.

If an employer uses this new IDVT service, the employer should ensure that they get a clear copy of the IDVT identity check, and the document checked, in an unalterable format to obtain a statutory excuse from paying a civil penalty for employing an illegal worker. The employer must also make sure that the provider is certified to meet the required standards and must retain a clear copy of the IDVT identity check, and the documents checked for at least two years after the employment has come to an end.

One other change arising from this regulation is that holders of Biometric Cards will now have to use the Home Office online service to evidence their right to work.  Physical cards will no longer be acceptable for right to work checks. The new rules only apply to right to work checks from 6 April 2022 onwards and so employers are not required to carry out a retrospective check on any checks carried out prior to 6 April 2022 where a physical card was used.

Finally, the government has published two associated codes of practice which have been revised to address the changes arising from the regulation. These are the “Code of practice on preventing illegal working: Civil penalty scheme for employers” and the “Code of practice for employers: Avoiding unlawful discrimination while preventing illegal working”.

Louis Howlett, Solicitor and Business Immigration specialist

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