Recent changes made to right to work checks guidance

The Home Office has recently revised its guidance to employers regarding how to conduct right to work checks. Employers must ensure that they check the right to work of every person they are going to employ, regardless of their nationality.

Currently employers must use the correct way of checking each person. Depending on their nationality, employers must undertake online checks, manual in-person checks, or they can use authorised third parties (so-called Identity Service Providers – IDSPs) to undertake qualifying checks for them. Below is an explanation of some of the more important changes.

Online right to work checks

Employers should conduct an online check for eVisa (i.e. digital permission) holders who have a pending Home Office application, administrative review, or appeal. The prospective employee should provide a share code to the employer, which can be entered into the employer’s right-to-work online account to obtain confirmation.

Some individuals may not be able to generate a share code. In these instances employers should get in touch with the Employer Checking Service and obtain a Positive Verification Notice.

Usage of IDSPs

The latest updates have clarified the instances in which employers can use IDSPs for right to work checks. They can undertake checks on British and Irish nationals with current passports/ID cards, and if the check is undertaken correctly it will provide the employer with protection against any penalties, should the employee turn out not to have the right to work in the UK.

This is not the case for manual or online checks. Even if IDSPs undertake these correctly, the employer will not benefit from protection against any penalties. They may therefore wish to continue to perform these checks themselves.

Short-dated Biometric Residence Permits

Most BRPs now carry an expiry date of 31 December 2024. This is correct, as the Home Office estimates that it will complete its move to purely digital visa permissions by this date. Once the employer receives the share code and checks the individual’s right to work online, they will be able to check the actual end of the visa validity.

Frontier workers

For frontier employees, the new guidance removes the types of proof needed in the absence of a permit, including for continued status as a frontier worker. As of 1 July 2021, these workers have been required to produce a physical Frontier Worker Permit.

 EU Settlement System (EUSS) applications

Businesses should not treat applicants who have an outstanding, valid application under the EUSS differently to those who have a status already.

Anyone who submitted a paper application to the EUSS before 30 June 2021 will have received an “Acknowledgement of Application” previously known as a ‘Certificate of Application’. Employers must confirm with the Employer Checking Service whether these prospective employees have the right to work.

Additional employment for Skilled Workers

The new guidance explains what counts as supplementary employment for Skilled Worker visa holders. Companies offering qualifying jobs should undertake a right to work check to make sure the worker is in possession of the necessary immigration authorisation.

Students

Employers have been given extra instructions on the types of proof they can accept from educational institutions (such as information regarding term times) to confirm that students are not in violation of their visa terms and are authorised to perform the work in question.

The employer must decide whether they wish to accept the evidence from the student directly, or whether they wish to contact the education provider.

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 Twitter, 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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