Last year the Government announced its proposed implementation of a new free-to-use Digital ID for people residing in the UK. According to the Government, it would be stored securely on mobile phones to streamline access to Government services, as well as being required for the purposes of conducting right to work checks with a view to combatting illegal working in the UK.
In this article, we consider whether the introduction of Digital ID would be a gamechanger for right to work checks, or whether it represents little more than a change in appearance.
Current right to work rules
Under s15 of the Immigration, Asylum and Nationality Act 2006; employers must not employ an illegal worker in the UK. Civil penalties for breach of s15 can be as high as £60,000 per illegal worker. There is also a criminal offence under s21 in cases where an employer knew or had reasonable cause to believe that an employee was working illegally. In those cases, unlimited fines and/or imprisonment are possible.
Liability for a civil penalty under s15 can be removed if an employer has a “statutory excuse” in relation to the particular individual in question.
How can a statutory excuse be secured?
Employers can secure a statutory excuse by carrying out a right to work check in accordance with the Home Office guidance that is in force at the time of the check. This initially requires a check to be carried out before an individual commences employment. In some circumstances, there may also be a need to conduct follow-up checks if an individual has time-limited visa permissions.
The specific methodology for carrying out checks is set out in the current guidance (link at the end of this article), as well as lists of the documents (List A and List B) that are acceptable to the Home Office. Different checking requirements apply to different categories of individual. In some circumstances, checking hard copy documents is acceptable. In others, use of an Identity Service Provider to carry out digital checks is permitted. For visa holders, the Government’s online checking service is the main route for checks as part of the Home Office’s “digital by default” strategy.
Checks should be securely retained for the duration of an individual’s employment and for 2 years post-termination.
What happens if employers don’t check?
There is no standalone penalty for failure to check. The offences under the 2006 Act relate to employing illegal workers, not a failure to check for illegal working. However, carrying out a check in accordance with Home Office guidance is the only means by which to appropriately mitigate the risk of civil penalties. Failing to carry out an appropriate check would therefore leave an employer exposed to a significant degree of legal and practical risk.
Who needs a right to work check on file?
All employees should have their right to work checked pre-employment (and as required thereafter if they have time limited visa permissions). It is essential for employers to carry out consistent checks across the board and specific individuals should not be selected based on perceptions or assumptions around race, nationality, religion, ethnic origin or their name. Adopting the latter approach would almost certainly amount to unlawful discrimination. The Government has published a Code of Practice on avoiding unlawful discrimination when preventing illegal working that offers useful guidance for employers – https://www.gov.uk/government/publications/right-to-work-checks-code-of-practice-on-avoiding-discrimination.
The Government has also recently conducted a consultation on proposals to extend the checking regime to workers, sub-contractors and other categories of engagement (in addition to traditional employment arrangements). The main purpose of these proposals is to extend the checking regime to workers in the “gig economy” and other less traditional work arrangements. Taken together with an increase in illegal working enforcement action, employers can expect strict enforcement of new updated guidance and a revised statutory code if these changes are implemented moving forward.
Will the new proposed Digital ID significantly change the process?
When announcing its proposals, the Government stated that:
It will also be required for right to work checks to stop those with no right to be in the country from finding work. This is to send a clear message that if you come here illegally, you will not be able to work, deterring people from making dangerous journeys.
It also confirmed that:
To help tackle illegal working, it will be a legal requirement for employers to check your digital ID as proof of your right to work, for instance before you start a new job.
That’s because only UK citizens and legal residents will be able to have one – so those coming here illegally, will not be able to prove their right to work.
It appears clear that the Digital ID would remove some layers of complexity from the right to work check process. For example; it is likely that List A and List B of suitable documentation would be significantly reduced if Digital ID were to come into play. It could also bring the current manual checking procedures to an end. This would likely reduce costs and the administrative burden for employers, which could improve the efficiency of checking processes and would no doubt be welcomed.
That said, as things stand, it does not appear to be a silver bullet. Under the current regime; compliance ultimately depends on employers conducting checks as required, and there are instances where obligations are not met. It is not yet clear why this would be any different under the Digital ID system. Further details on how the Digital ID system would operate in practice are awaited. However, unless a Digital ID number must be entered into a central system to “unlock” the ability to take up employment and be paid; then it appears that the risk of employers disregarding their obligations could remain.
Next steps
A public consultation is to be launched later in 2026, and employers may wish to monitor and/or contribute to the consultation process. In the meantime, employers should ensure that they continue to comply with the current version of the Home Office’s guidance on right to work checks until further notice – https://www.gov.uk/government/publications/right-to-work-checks-employers-guide. As guidance is updated periodically, it is therefore essential that employers access the most recent version of the guidance online, as opposed to relying on printed copies that may be outdated. In preparation for future changes – including the potential widening of the checking regime – employers may also wish to consider a comprehensive audit of their current right to work checks to identify and address any gaps before new procedures are rolled out.
