There has been a lot in the press recently about the Government’s decision to step back from mandatory digital IDs. This has prompted understandable questions from employers. Has the UK paused its ambitions for a digital immigration system? Does this signal a shift away from online right to work checks? And what does this mean in practice for HR teams?
The UK’s drive to digitalise the immigration system
Over the past several years, the Home Office has invested heavily in digitisation across the immigration system. Digital application forms, digital biometric checks, digital immigration status, digital right to work checks and the introduction of the Electronic Travel Authorisation (ETA) regime all form part of a wider shift away from paper-based evidence and manual processes, and reflect how the UK envisages its borders being managed in the future.
The digital visa system has been a long time in the making. Originally opened to EU nationals who applied for pre-settled and settled status under the EU Settlement Scheme in the wake of the EU Referendum, it has experienced accelerated development in recent years, with millions of people receiving eVisas since 2018. Whilst the rollout has not been entirely smooth, the Home Office is on track to finalise the process and replace all visa stickers with eVisas by the end of 2026.
Since an eVisa is fully digital, with no underlying paper-based document, a corresponding right to work or rent check must be completed using the Home Office’s online service. The online right to work service was originally launched by the Home Office in December 2018 for limited cohorts, with the system becoming mandatory for BRP and BRC holders in April 2022. Alongside making online checks mandatory for those individuals, the Home Office permitted checks via certified digital identity service providers (IDVPs) for British and Irish citizens, who are not in scope to use the Home Office’s online right to work system.
The recent ‘U-turn’ on digital IDs does not steer away from successive governments’ commitment to digitalise immigration and the right to work check process. Rather, it has been indicated that instead of digital IDs becoming mandatory for the working-age population in the UK, digital verification of alternative documents, such as passports, may also be available. The Government is clearly committed to expanding the digital right to work check process.
Where the real challenge lies
The Government has been faced with the complex task of translating technology into practical wins for employers and workers. As with any technological advancement, there has been pushback and hesitation. Employers and workers need sufficient time to adjust to new realities, and an overly rigid application of the rules should be avoided so as not to disproportionately disadvantage individuals who do not possess documentation in the required format, thereby avoiding bias and limiting employers’ exposure to potential discrimination claims.
At the same time, digital systems are not yet perfect. As with any technological transition, there are practical gaps, user challenges and uncertainty around nuanced situations. Clear guidance and easy access to specialist advice are therefore crucial to ensuring adequate support, particularly for employers who do not benefit from in-house employment or immigration expertise.
Why digital checks can reduce risk
Against the backdrop of these concerns, it is important to recognise that digitalisation can enhance compliance when properly understood.
Online right to work checks automate key elements of the verification process, create standardised records and can reduce the scope for human error when recording or interpreting information.
Used correctly, digital systems can strengthen an employer’s statutory protections and provide greater audit resilience.
The present position
All employers in the UK are required to conduct a right to work check before employing an individual to ensure they are legally permitted to carry out the work in question. Where right to work is time-limited, the employer must conduct a follow-up check shortly before it expires.
At present, the following types of checks are available to employers:
- A manual right to work check – obtaining, copying and retaining one of the original documents prescribed by List A or List B: https://www.gov.uk/government/publications/right-to-work-checklist/employers-right-to-work-checklist-accessible-version
There are detailed rules governing how and for how long copies of these documents must be retained.
- A check using a digital verification service (DVS) provided by a certified provider. Currently this service is available only for British and Irish citizens who hold a valid passport.
- A Home Office online right to work check – available to individuals holding an eVisa or a BRP, provided it has expired within the last 18 months (for most BRP holders, this means until July 2026).
The Home Office guidance is clear that, at present, it is the employee who may choose how to evidence their right to work where multiple options are available.
For example, a British national without a valid passport may present a birth or adoption certificate issued in the UK together with an official letter or document from a previous employer or government agency confirming their name and National Insurance number. This applies even if the employer’s standard process is to use a DVS for such checks.
This flexibility, and the safeguard it provides against potential discrimination, is something the Government may wish to preserve as the digital check process continues to expand.
The hidden risks within the existing digital check process
It is important to note that, like in the case of physical checks, digital right to work checks, whether conducted through the Home Office system or via a DVS, still require the employer to carry out an imposter check. Employers must satisfy themselves that the photograph and biographical details provided by the digital verification service or generated by the Home Office are consistent with the individual presenting themselves for work. In essence, ensuring that the person they hired is the person working for them. This can be carried out in person or via video call.
Another important limitation of DVS checks is that, although many providers offer checks for individuals beyond those holding a valid British or Irish passport, the Home Office does not currently permit employers to establish a statutory excuse against liability for a civil penalty if a manual document-based check or a Home Office online right to work check is conducted by a digital verification service.
Summary
The Government remains committed to expanding digital right to work checks.
Whilst, as with all technological advancement, there are concerns and some reluctance, it is very unlikely that the direction of travel will change. It is therefore more important than ever for employers to fully understand which aspects of the digital right to work process are currently mandatory, which are optional, and what benefits and limitations each carries. This understanding will help futureproof internal processes and systems.
As the digital immigration system continues to develop, HR should focus on:
- Understanding which cohorts of workers are already subject to digital status
- Training hiring managers on compliant and non-discriminatory right to work practices
- Ensuring internal policies reflect current Home Office guidance, and
- Monitoring further developments as digitalisation expands
Above all, digital reforms should be viewed positively. Like any technological progress, employers should embrace them with appropriate caution, curiosity and knowledge.
Progress is inevitable. The most resilient employers will be those who engage with the system as it exists today, recognise both its strengths and limitations, and build compliant processes around it.
Digitalisation, when approached proportionately and fairly, can reduce risk rather than increase it. The task for employers is not to fear it, but to understand it.
This update is for general purpose and guidance only and does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered. No part of this update may be used, reproduced, stored or transmitted in any form, or by any means without the prior permission of Brecher LLP.
