Employer’s Guide to Right to Work Checks

On 23 September 2024, the UK Home Office updated its Employer’s Guide to Right to Work Checks to clarify various procedures and requirements.

The section titled “Who is this guidance relevant for?” now outlines the public policy reasons why businesses are encouraged to ensure their contractors conduct right to work checks on their employees, or for businesses to carry out the checks themselves.

Employers, including HR staff and others responsible for recruitment, must understand their legal obligation to conduct proper right to work checks. This obligation applies to employers hiring staff under any type of contract (employment, service or apprenticeship). Right to work checks are also required for workers that are not direct employees (e.g. self-employed), to meet sponsorship duties. Employers, not the staff performing the checks, are responsible for civil penalties. Even when using an Identity Service Provider (IDSP) for digital identity checks on British or Irish citizens, the employer remains liable if the checks are incomplete or incorrect. Generally, using third parties (like recruitment agencies) for checks does not relieve employers from liability. Employers are encouraged to ensure that contractors and labour providers also conduct proper checks. This is important to avoid disruptions, safeguard health and safety, maintain insurance and comply with various regulations. Right to work checks are also part of many international standards and audits.

Clarification on the procedures for follow-up right to work checks, detailed in the section “When do you conduct follow-up checks?”

Employers must recheck the right to work for employees with time-limited permission in the UK if they continue working after their current permission expires. No follow-up checks are required for those with indefinite leave or status under the EU Settlement Scheme. Follow-up checks must be done before the permission ends to avoid employing someone without the right to work. If the employee cannot provide proof of continued permission, employers should contact the Employer Checking Service (ECS) or Home Office for verification. Employers must provide employees reasonable time to prove their right to work. If a follow-up check reveals that the employee is working illegally, employers lose their statutory excuse and must report the case to the Home Office. In cases of TUPE transfers, the new employer inherits responsibility for right to work checks from the previous employer, with a 60-day grace period to conduct new checks. However, the buyer can still be liable if the seller’s checks were incorrect. For corporate changes where the employer’s legal status changes but remains the same entity, no new right to work checks are needed unless there is doubt.

Annex A has been updated to confirm that ILR endorsements in a current passport from a Crown Dependency are valid proof of the right to work.

Annex B includes additional information for employers offering supplementary employment to individuals with immigration permission under a sponsored work route and reflects recent immigration rule changes.

Skilled Workers can undertake supplementary employment if it is in an occupation listed in Tables 1, 2, or 3 of Appendix Skilled Occupations, or, for certain sponsored routes, if it appears in the Appendix Immigration Salary List or is in the same profession and at the same level as their sponsored job. This applies to routes like Intra-Company (pre-April 2022), Senior or Specialist Worker (with transitional qualifications), and others like T2 Minister of Religion or International Sportsperson.

Supplementary employment must meet the following conditions:

• It cannot exceed 20 hours per week.
• It must not conflict with their contracted hours for their sponsored job.

Employers must ensure the worker the worker has the right to work in the supplementary role and verify that they continue working for their sponsor. If an employer learns that the worker is breaching these conditions and continues to employ them, they lose their statutory excuse against penalties. If the worker’s status changes, such as ceasing work for their sponsor, the employer must take appropriate steps, like requesting further evidence or terminating employment.

Annex D has been updated regarding the employment of Ukrainian nationals, highlighting the closure of certain schemes and changes to the Homes for Ukraine scheme, which now grants some visa holders, who applied after 19 February 2024, an 18-month stay in the UK.

The UK Home Office introduced specific visa schemes to support Ukrainian nationals and their families amid the Ukraine conflict, allowing them to work, rent and access services like healthcare and education.

Initially, the Standard Family Visa was amended in February 2022 to ease entry for dependants of British citizens in Ukraine, and later extended to family members not living together in Ukraine. This visa route closed on 4 March 2022 as Ukraine-specific schemes were established.

Three key Ukraine Schemes were launched:

• Ukraine Family Scheme (4 March 2022, closed to new applicants on 19 February 2024)
• Homes for Ukraine Scheme (14 March 2022, open)
• Ukraine Extension Scheme (3 May 2022, closed to new applicants on 16 May 2024)

These schemes are fee-free and have no salary or language requirements, allowing applicants to stay for up to three years, with some Homes for Ukraine visa holders receiving 18 months’ permission from February 2024 onwards. For Ukrainian passport holders, a concession was introduced in March 2022 allowing visa applications without submitting biometrics. This concession ended in December 2023, aligning the process with other visa nationals requiring biometrics at Visa Application Centres (VAC). Those who applied earlier can continue using their travel permission. Applicants approved through these schemes receive time-limited work permissions and are required to obtain a Biometric Residence Permit (BRP) upon arrival, which grants up to 36 months’ stay. Employers must verify work permissions through specific checks, including using the Home Office online service for BRP holders. Those without valid Ukrainian passports must provide biometrics at a VAC and will receive an entry clearance vignette. After arriving in the UK, they must collect their BRP to confirm their work rights. Employers should follow verification processes to ensure compliance with right-to-work regulations.

How Gherson can assist

Gherson’s Immigration Team are highly experienced in advising on UK visa matters. If you have any questions arising from this blog, please do not hesitate to contact us for advice, send us an e-mail, or, alternatively, follow us on X, Facebook, Instagram, or LinkedIn to stay-up-to-date.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please do not hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

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