An employer’s guide to conducting right to work checks on Ukrainian nationals

Ukrainian nationals fleeing the devastating war in their homeland can enter the UK through one of three bespoke visa schemes:

• Ukraine Family Scheme which allows Ukrainian nationals to enter the UK to join an immediate or extended family member who already resides here;
• Homes for Ukraine Scheme which allows Ukrainian nationals and their immediate family members to enter the UK if they have an approved UK sponsor; or
• The Ukraine Extension Scheme which allows Ukrainian nationals and their families to stay in the UK if they hold any valid UK visa or held one that expired on or after 1 January 2022.

The UK Government has reported that 107,400 visas have been issued under the Ukraine Family Scheme visa and the Ukrainian Sponsorship Scheme visa as of 17 May 2022.

Ukrainian nationals holding permission under any of the above schemes will be permitted to live, work and study in the UK and access public funds.

Employing a Ukrainian national

Although employers are not required to provide sponsorship to employees who hold permission under the Ukrainian visa schemes, they must still carry out right to work checks before their employment starts.

People arriving in the UK under the Ukraine visa schemes will be issued with a Biometric Residence Permit. Since 6 April 2022, Biometric Residence Permit holders must now evidence their right to work using the Home Office online service.

Take a look at our video blog here for further information on how to conduct a right to work check and the changes that have recently come into force.

Process for Ukrainians with a valid Ukrainian Passport

A concession to the Ukraine Scheme was introduced on 15 March 2022, which allows those with a valid Ukrainian passport to submit an application to either scheme without first having to attend a Visa Application Centre overseas to submit their biometrics. Those who are assessed without submitting their biometrics are issued a permission to travel letter.

On arrival to the UK, Border Force will stamp the individual’s passport with permission to enter the UK (a Code 1A or Amended Code 1 endorsement – Leave Outside the Rules (LOTR)) which is valid for six months with no restrictions on taking employment or recourse to public funds.

Where Border Force have granted LOTR, the individual will need to submit their biometric information to obtain a Biometric Residence Permit which will be endorsed with up to a 36-month permission to stay. This can be done at any point during the six-months validity of the stamp.

Until the individual obtains their Biometric Residence Permit, they have a time-limited (6 months) right to work under the LOTR stamp. If the individual has not obtained their Biometric Residence Permit before commencing employment, the employer should conduct a manual right to work check. Guidance on how to conduct a manual right to work check can be found here. However, this will only give employers a time-limited statutory excuse against a civil penalty and employers are encouraged to conduct an online right to work check  as soon as the individual receives their Biometric Residence Permit.

Therefore, any prospective employee who is a Ukrainian national, who has not applied for permission to stay in the UK will not have the right to work. This means that you should not employ them until they have taken action to regularise their status in the UK.

Process for Ukrainian nationals who do not have a valid Ukrainian passport

If an individual does not have a valid Ukrainian passport, they will be required to provide their biometric information at a Visa Application Centre overseas and will then be provided with an entry clearance vignette attached to a ‘Form for Affixing the Visa’. Shortly after arrival to the UK, their Biometric Residence Permit will be available for collection. Once the individual has obtained their Biometric Residence Permit, it can be used to carry out the online right to work check in the normal way and the employer will maintain a statutory excuse against any civil penalty.

Where the individual needs to start work before they are able to collect their Biometric Residence Permit, individuals can use their ‘Form for Affixing the Visa’ document as proof of their right to work, but this will need to be in conjunction with a Positive Verification Notice which employers can obtain using the Home Office Employer Checking Service.

For further advice on conducting right to work checks for Ukrainian nationals, please get in touch at n.holmes@capitallaw.co.uk.