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All employers in the UK have a responsibility to prevent illegal working which is done by undertaking simple right to work checks before an employee commences employment.

1. Why do employers need to know what IDSPs are?

All employers in the UK have a responsibility to prevent illegal working which is done by undertaking simple right to work checks before an employee commences employment. This is to ensure the individual has the right to work in the UK and is not disqualified from carrying out the work in question by reason of their immigration status.

From 06 April 2022, employers can now use the services of an Identity Digital Service Providers (IDSP) to digitally verify a worker’s identity using Identity Document Validation Technology (IDVT). By undertaking these checks via an IDSP, an employer will be provided with a continuous statutory excuse (defence against a civil penalty) subject to the employer reasonably believing that the IDSP has carried out their checks correctly in accordance with the government guidance.

2. Who can use IDSPs for digital right to work checks?

The services of an IDSP can only be used to carry out digital identity checks on behalf of individuals who hold a valid British passport or Irish passport card. If the workers passport is not valid (i.e. it has expired), the services of an IDSP cannot be used and a manual right to work check must be undertaken to verify the individual instead. For non-British and Irish citizens, the starting position is that employers must carry out a digital online check using the individual’s right to work share code. The online right to work checking service can currently be used in respect of those who hold either:-

a) a biometric residence permit;
b) a biometric residence card;
c) status issued under the EU Settlement Scheme;
d) a digital Certificate of Application to the EU Settlement Scheme issued on or before 30 June 2021;
e) status issued under the points-based immigration system;
f) a British National Overseas (BNO) visa; or
g) a frontier workers permit.

If an employee has leave in a category not listed above, employers should conduct a manual right to work check.

3. What is an IDVT and what do IDSPs do?

IDVT conducted by IDSPs is the process of obtaining evidence of the prospective employee’s identity and checking that it is valid and belongs to the person who is claiming it. The IDSP must take all reasonable steps to check the validity of the document and take all reasonable steps to verify the prospective employee is the rightful holder of the document.

4. Do employers have to use a IDSP and if so, do they have to be certified?

There is no obligation for employers to use IDVT via an IDSP however, conducting digital right to works checks for British or Irish citizens, as opposed to manual document checks, will remove risk of human error and reduce the time involved in having to physically examine passports.

It is not mandatory for employers to use a certified IDSP provider however, using a certified IDSP will provide employers with comfort that their chosen IDSP is capable of providing a satisfactory ID verification service. It also provides employers with assurance that they will have established a statutory excuse if the right to work checks have been conducted in accordance with the official government guidance and code of practice. This is because certified IDSPs are certified by an independent certification body to assure that they are capable of providing identity verification services in accordance with the official government guidance and meet the standards set out in the UKDIATF.

Employers may use a non-certified IDSP provider if they are satisfied that they are able to provide the required checks to an adequate standard. It should however be noted that IDSPs can carry out digital identity verification to a range of standards or levels of confidence and the Home Office recommends that employers only accept checks via a certified IDSP that satisfies a minimum of a Medium Level of Confidence.

5. Who is responsible and what else is required of the employer?

It is important to remember that it is still the employers (rather than the IDSP’s) ultimate responsibility to ensure that checks undertaken by an IDSP are carried out and conducted correctly. Therefore, the use of an IDSP does not mean that an employers liability to conduct adequate right to work checks will transfer. An employer still bares the risk of a civil penalty (unless a statutory excuse has been established) should the employee later be found to be working without the requisite permission and it is reasonably apparent the check has not been completed correctly by the IDSP. Therefore, it is vital that employers carry out their own due diligence to satisfy themselves to a reasonable belief that their chosen IDSP has completed the check correctly.

Employers must ensure that:-

• the photograph and biographic details (for example, date of birth) on the output from the IDVT check are consistent with the individual presenting themselves for work;
• a clear copy of the IDVT identity check output is retained for the duration of the employee’s employment and for two years after their employment has come to an end; and
• staff receive training on what information they must receive from an IDSP to confirm verification of identity, what the information can be used for and the additional steps they must take to establish eligibility to work.

Employers will not have a legal defence to any illegal working penalties where it is reasonably apparent that the prospective employee is not the individual linked to the identity which was verified by the IDSP. Therefore, an employer must verify that the image supplied with the check from the IDSP matches the prospective employee in order to ensure that the prospective employee is who they say they are. In addition to this, it is imperative that employers undertake all steps detailed above and contained within the official government guidance in order to establish a statutory excuse.

6. What are employers’ options?

In order to establish a statutory excuse against a civil penalty in the event that an employee is found to be working illegally, employers must undertake either:

• A manual right to work check;
• A right to work check using IDVT via the services of an IDSP;
• a Home Office online right to work check.

As stated above, an IDSP can only be used to check current British passports or Irish passport cards and therefore, if an individual is using an expired passport or other document type, a manual check will be required. In regard to all other job applicants/employees, the type of check required to be conducted will depend on the status of the job applicant/employee and government guidance should be consulted for further details as to the appropriate type of check.

Further information regarding digital identification verification and guidance for employers using IDSP’s can be found at Annex D of the gov guidance – An employer's guide to right to work checks: 6 April 2022 (accessible version) - GOV.UK (www.gov.uk)

Digital identity certification for right to work, right to rent and criminal record checks - GOV.UK (www.gov.uk)

An employer's guide to right to work checks: 6 April 2022 (accessible version) - GOV.UK (www.gov.uk)

 

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