The End of COVID-19 Adjusted Right to Work Checks: What Next?

As we look ahead to post-pandemic life, changes have been made to the adjusted measures of the UK right to work (RTW) check process as of 1 October 2022. Introduced in response to COVID-19 in March 2020 and colloquially referred to as ‘COVID Concessions,’ these adjustments ended on 30 September 2022.

While process digitisation has long been a priority of UK Visas & Immigration (UKVI), the realities of undertaking in-person RTW checks during a global pandemic required a method which did not – then – exist. Since COVID Concessions were introduced, the UKVI has accelerated its transition to all things digital and expanded use of the online RTW check service and issuance of eVisas, and new digital check methods for British and Irish nationals have been introduced. Combined with the shift towards post-pandemic planning in the UK, employers should now be able to conduct RTW checks using one of the remaining available methods regardless of business model or nationality of employee.

The sun sets on COVID Concessions

COVID Concessions were a practical and temporary relaxation of the UK RTW check process in response to the pandemic, which made it unsafe to conduct checks in person. The concessions allowed employers to receive scans or photos of original RTW documents and verify them via video call. Initially, these concessions applied to all visa holders as well as British and Irish citizens.

From 6 April 2022, COVID Concessions no longer applied to individuals eligible to use the online RTW checking service. With the complete removal of the concession on 1 October 2022, where the online RTW check service is not an option, employers are now required to conduct a manual RTW check, reverting back to the pre-COVID Concession method of being in receipt of the original RTW document. Despite this shift back to what some may say is an archaic method of RTW check, employers continue to have the option to meet with employees either in person or virtually.

The trifecta of checks

As of 1 October 2022, there are three ways in which an employer can conduct a valid RTW check. Regardless of method, the employer will still need to carry out a ‘likeness check,’ either in person or virtually, before the individual can begin to work.

1. Online RTW check. The online RTW service allows eligible individuals to view their RTW status and share this with their current or prospective employer via a share code. This includes those holding a current Biometric Residence Permit (BRP), Biometric Residence Card (BRC), Frontier Worker Permit (FWP) or an eVisa. Whilst the service was introduced in 2018, since 6 April 2022 this is now the only acceptable method for checking these individuals’ RTW.
2. Manual check. Employees who do not hold a BRP, BRC, FWP or eVisa must have their original RTW documents checked manually. This includes British and Irish nationals, as well as those who hold other types of time-limited permission, such as an entry vignette. The document must be one featured on List A or List B of the UKVI’s Right to Work Checklist in order to be a valid check. In this instance, whilst the manual check may be conducted virtually, the checker must see the original documents creating the obvious issue of sending ID documentation.
3. Using an IDSP. In the RTW guidance published January 2022, the UKVI introduced Identity Service Providers (IDSPs), using Digital Identity Document Validation Technology (IDVT), onto the RTW check scene. IDSPs use a digital process to check the identity and RTW of British and Irish citizens who hold a valid passport. Using an IDSP is not mandatory and is entirely optional.

Where businesses decide to engage an IDSP, the UKVI recommends using a certified provider in order to establish a statutory excuse, and at minimum only accepting checks that satisfy at least a medium level of confidence. While IDSPs can digitise the document verification process, it is still the employer’s responsibility to conduct a ‘likeness check’ before the individual starts work (but in this instance, would not need to see the original document and can rely on copies).

Fragomen’s own forthcoming RTW Check Tool will integrate IDVT within our existing processes. We have partnered closely with a leading identity verification provider to design a bespoke tool that can help remove the administrative burden placed on employers.

It is important to note that the above only applies to checks carried out from 1 October 2022 and that retrospective checks are not required for existing employees where a valid RTW check or COVID Concession RTW check was undertaken.

Employer Checking Service

What is the process when all other methods fail, the individual needs to begin working, but a compliant RTW check cannot be carried out? This can arise in a number of situations:

• An employee has a pending immigration application;
• A new hire has not received their BRP, or it contains an error and requires a replacement; and/or
• The online RTW check service displays a consistent error.

These are all situations where the Employer Checking Service (ECS) should be used. The ECS team will check UKVI databases to produce either a Positive Verification Notice (PVN) or a Negative Verification Notice (NVN). This can take one to two weeks as it is a manual process once the online form is submitted. Only the PVN will provide a statutory excuse, lasting six months. 

The importance of getting it right

All UK employers must complete a valid RTW check on new hires before allowing them to begin working. If illegal working is identified by the UKVI and there is no statutory excuse in place, it places an employer at risk of financial penalties and in serious cases possible criminal liability, as well as the loss of a UK sponsor licence.

Given the extensive changes in the RTW landscape, employers should review internal processes and ensure staff members are given regular training to ensure up-to-date and consistent methods are followed throughout the business.

Need to know more?

If you need a review of your RTW check processes or are interested in learning more about the Fragomen RTW Check Tool, please contact Fragomen’s dedicated Compliance and Audit team at [email protected].

For further information, please contact Associate Evan Tutton at [email protected] or Senior Associate Victoria Welsh at [email protected]. This blog was published on 6 October 2022, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please visit our dedicated COVID-19 site, subscribe to our alerts and follow us on LinkedIn, twitter, Facebook and Instagram.