New Right to Work Check Guidance for Employers
As has been set out in a previous post, new provisions came into force on 6 April 2022, which will begin the phasing out of the use of Biometric Residence Cards and Permits (BRC/BRPs) and Frontier Worker Permit (FWPs) to prove lawful immigration status in the UK when seeking employment.
New updating guidance was published on 22 April 2022 to reflect the 6 April changes; it states that the most significant changes or updates brought by the new legislation relate to the way BRCs, BRPs and FWPs are used to prove the right to work. Other changes will be discussed briefly below.
Using the Online Checking Service Only – The Phasing Out of Biometric Cards
The relevant passage in the Guidance relating to biometric cards reads as follows:-
“Changes to the way in which biometric cards are used to evidence right to work
The way in which Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) holders evidence their right to work has changed.
Since 6 April 2022, BRC, BRP and FWP holder are required to evidence their right to work using the Home Office online service only. (emphasis added) Employers cannot accept physical cards for the purposes of a right to work check even if it shows a later expiry date. BRCs, BRPs and FWPs have been removed from the lists of acceptable documents used to conduct a manual right to work check.
The Guidance explains that the “‘Home Office online right to work checking service’ means:-
the online system allowing employers to check whether a person is allowed to work in the United Kingdom and, if so, the nature of any restrictions on that person’s right to do so. For the avoidance of doubt, this system is accessible for employers on the ‘View a job applicant’s right to work details’ page on GOV.UK. No other online portal relating to immigration status may be used instead for right to work checking purposes.”
BRP holders are still expected to collect their cards; the Guidance instructs the employer as follows about why biometric cards remain useful:-
“BRP holders must still collect their card, but they prove their right to work using the Home Office online service rather than showing the physical document. Those permitted to work in the UK are strongly encouraged to collect their BRP before they start work in order to use the information to generate a right to work share code. (emphasis added) If they need to start work for you (meaning the employer) prior to collecting their BRP, they will be able to evidence their right to work by producing the short validity vignette in their passport which they used to travel to the UK. You will need to conduct a manual right to work check on the basis of this vignette, which must be valid at the time of the check. However, as this will expire 30 days from issue, you will have to repeat the check using the online service, for the statutory excuse to continue.”
Using the Online Service to Prove a Right to Work
The Guidance (An employer’s guide to right to work checks: 6 April 2022, Updated 27 April 2022) provides explanations and guides to using the online service for both the prospective employee and employer, beginning as follows:-
How Does the Service Work?
Individuals using the service must select one of the three reasons for sharing their immigration status. For prospective or existing employees, they must select choose to prove their right to work in the UK.
After selecting the correct option, in this case ‘prove your right to work to an employer’, the individual can then generate a 9-character long share code that can be passed on to an employer (emphasis added) which, when entered alongside the individual’s date of birth, enables you to access the information.
The instructions to the employer go on to state:-
Where an individual provides you with a share code via the Home Office online service, you must carry out the check by accessing the ‘View a job applicant’s right to work details’ page on GOV.UK in order to obtain a statutory excuse against a civil penalty.
It is not sufficient to view the details provided by the prospective or existing employee on the migrant part of the service.
The online service allows checks to be carried out by video call. You do not need to see physical documents as the right to work information is provided in real time directly from Home Office systems.
Detailed instructions about using the service follow in the Guidance, along with examples and the images an employer will see in the course of making the online check.
Other Changes to the ‘Employer’s Guide to the Right to Work Checks’
This is a lengthy guidance, as might be expected from a publication setting out the requirements for employers so they may avoid the imposition of statutory (expensive) penalties for employing people without proof of their right to work; the changes encompass employing EEA/EU citizens and their family members, Irish citizens, and those who have recently entered the UK under the Ukrainian (and other) Schemes.
The most recent version, published on 27 April 2022, replaced guidance published on 10 March 2022, and should be consulted regularly to ensure that compliance procedures meet the correct requirements.
The other changes set out in the recent guidance are listed as follows:-
- changes to the lists of acceptable documents (Annex A):
- the removal of current documents issued by the Home Office to a family member of an EEA or Swiss citizen, which indicated that the holder had permission to stay in the United Kingdom.
- addition to List B, group 2 of a Certificate of Application (CoA) digital or non-digital confirming a valid application to the EUSS on or after 1 July 2021 together with a Positive Verification Notice (PVN) from the Employer Checking Service (ECS).
- amendments to List B, group 2, document no 3 to include an application for leave to enter or remain under Appendix EU to the Isle of Man Immigration Rules and removal of reference to applications submitted on or before 30 June 2021.
- information on sponsored work and student categories (Annex C)
- changes and further guidance to enable employers to use Identity Service Providers (IDSPs) to carry out digital identity verification as part of a right to work check Are Other Physical Documents Besides Biometric Cards Required to Be Presented to an Employer for Checking?(Annex D).
- extension to the COVID-19 temporary adjusted right to work checks until 30 September 2022 (Annex E).
Are Other Physical Documents Besides Biometric Cards Required to Be Presented to an Employer for Checking?
As set out in the previous blog-post, there are three methods for an employer to conduct a right to work check, the Guidance sets them out as follows:-
- a manual right to work check
- a right to work check using IDVT via the services of an IDSP
- a Home Office online right to work check
Where physical documents are used, the Guidance sets out the process to be followed, and provides a list of ‘acceptable documents’ (at ‘Annex A’ to the Guidance) including passports, birth certificates, immigration status documents, national insurance numbers, etc. The Guidance also indicates what copies must be kept of these documents.
It is important to realise that all employees must provide proof of their right to work in the UK – whether British or Irish citizens or those with leave to remain (including indefinite leave to remain) which permits employment. As has been set out above, biometric cards can no longer be used to prove this entitlement.
EEA citizens can no longer use their passports to prove this entitlement, nor, after the changes which became effective on 6 April, can they use their biometric cards – they must provide verification from the Home Office online services.
In addition to the manual checks (where appropriate) and the online right to work checks, the Home Office has outsourced right to work/document checks to certified ‘Identity Service Providers’ (known as ‘IDSPs’) who employ Identity Document Validation Technologies’ or ‘IDVTs’ to verify documents and entitlements to employment. The Home Office provides information about how to become a certified ‘IDSP’ on their website here.
Checking the Information Held Online
Much rests on the accuracy of the information held online by the Home Office about an employee’s right to work. Here is a link to the website where this can be checked by an employee. Here also is a link to the Home Office website which gives information about how to contact the Home Office if this information is incorrect.
Contact our Business Immigration Barristers
For expert advice and assistance with Right to Work checks or any related work visa or immigration application, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.