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Thursday, March 29th, 2018

Legal update: criminal record checks 2

The following update has been received from Sandy Adirondack, voluntary sector legal expert –

Identity checking guidelines for criminal record checks

New identity checking guidelines for standard and enhanced disclosure checks became compulsory from 25 January 2018. These were introduced on 24 October 2017, and ran alongside the previous guidelines for a three-month transition period. The new guidelines bring DBS’s ID checking procedures into line with right to work ID checks under immigration law, which employers must carry out before employing anyone to ensure they are allowed to work in the UK. Unlike DBS checks which apply to both employees and volunteers, the right to work checks do not apply to volunteers.


Criminal record information for tier 2 workers from outside the EEA

Since 6 April 2017, workers from outside the European Economic Area who are applying for a tier 2 (general) visa in the education, health or social care sectors have had to provide a criminal record certificate from any country where they have lived for 12 months or more, either continuously or in total, in the past 10 years, while aged 18 or over. This does not include time living in the UK.

The criminal record certificate requirement applies only for occupations with specific Standard Occupational Classification (SOC) codes, but the relevant codes cover all health professionals, all therapy professionals,  nurses, midwives, all teaching and educational professionals from nursery through further education, social workers, probation officers and welfare professionals. Adult dependants and partners of tier 2 dependants may also need to provide a certificate.

Sponsors in these sectors now have a statutory duty, when they receive a certificate of sponsorship, to inform the applicant that he or she will need to obtain and provide a criminal record certificate before applying for a visa. In some countries it can take months to obtain this certificate, so organisations recruiting from outside the EEA need to take this into account and plan accordingly. A tier 2 applicant who requires a criminal record certificate but cannot obtain one must provide a letter as part of their visa application, explaining why they could not obtain it. Depending on the circumstances, the requirement for a certificate may be waived by UK Visas & Immigration (UKVI).


DBS checks for refugees and asylum seekers

Volunteer Centre Sheffield has two briefings – one short, one more detailed – on issues when carrying out DBS checks for refugees and  asylum seekers who want to volunteer for roles where a standard or enhanced check is needed. The short briefing is at and includes a link to the longer document.

Safeguarding in general

Safeguarding as a whole has been affected by recent media attention, particularly in relation to Oxfam. Update 1807 and this one are specifically about criminal record checks, which are only one aspect of safeguarding. For a wider look at safeguarding in general, two recent briefings (2-3 pages each) summarise key regulatory and good practice issues.

  • Are you meeting your safeguarding obligations? Three key action points for charities, Bates Wells Braithwaite solicitors, 8 March 2018, Covers the Charity Commission; charities working overseas; government strategy on preventing child abuse within the UK; updated statutory guidance; the independent inquiry into child sexual abuse; and key action points.
  • Charities: Protecting vulnerable beneficiaries, employees and volunteers, Brodies solicitors, 23 February 2018, Covers who is responsible; what does your constitution say; code of practice and risk register; Office of the Scottish Charity Regulator (OSCR) notifiable events; employment/HR; and “law and regulation is a good thing”. Although this is intended for Scottish charities, Scottish charity law in this area is virtually the same as the law in England and Wales, and the good practice recommendations apply everywhere.

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