15/03/2023

Update to employer’s guidance on conducting right to work checks

Employers in the UK are under a legal duty to prevent people working illegally. This obligation is usually met by employers, through conducting right to work checks, prior to employing an individual to ensure that their immigration status permits them to work. From our Business Immigration team, Alex Christen and Samantha Orenstein break down the latest updates.

On the 28 February 2023, the UK government updated its guidance for employers carrying out right to work checks on employees, predominantly to reflect changes in law and practice. Following the guidance provides legal protection (a statutory excuse) to employers in the event that they happened to employ a person who did not have the right to work.

What is the latest on the COVID-19 temporary adjusted checks?

The guidance reflects that the adjustments made to the right to work checks introduced on the 30 March 2020, as part of the government’s response to coronavirus, ended on the 30 September 2022. The adjustments had made it easier to carry out right to work checks remotely. The guidance confirms that employers do not need to carry out retrospective checks on employees who had adjusted checks done during this period. As long as a check was done in accordance with the guidance at the time, the employer will have a statutory excuse.

Since the 1 October 2022, employers have needed to carry out one of the prescribed checks before employment commenced, i.e. a manual check, using Identity Document Validation Technology (IDVT) through an Identity Service Provider (IDSP) or a Home Office online check.

Are there any updates to the list of acceptable documents for manual right to work checks?

Yes. Where an employer is conducting a manual right to work check, the updated guidance confirms that an individual’s Re-admission to the UK (RUK) endorsement in a passport would be an acceptable document to receive for the purposes of right to work checks.

Documents copied for the purposes of manual right to work checks (and online checks) must be securely destroyed two years after the individual’s employment has ended.

When can employers use an IDSP?

Since the 6 April 2022, employers have been able to use ID Service Providers to complete the digital identity verification element of the right to work checks for British and Irish citizens who hold a valid passport.

The new guidance makes clear that except where an employer uses an IDSP expressly for right to work checks for individuals falling in these categories, it is not possible for employers to establish the statutory excuse if the manual check, or Home Office online check, is performed by an IDSP.

The Home Office has compiled a list of certified providers which meets its Minimum Level of Confidence and whilst it is not mandatory to use them, it is recommended.

As with all evidence of right to work checks, employers must retain a clear copy of the IDSP identity check for the duration of employment and for two years after the employment has come to an end and be able to produce copies quickly in the event of a Home Office request.

The guidance also contains a new section on reusable identities for IDSPs, meaning certain holders of Irish or British passports can have their document processed by an IDSP and reuse the results for future employers, until the document expires.

What if an individual presents a Biometric Residence Permit (BRP) with an expiry date of 31 December 2024?

Employers may come across BRP cards that expire on 31 December 2024, but the individual has permission to stay in the UK beyond that date. This can be verified by an employer through using the individual’s share code to access an online profile which will contain the expiry date of the individual’s immigration permission.

The guidance clarifies this is not an error, but rather part of the development of an all-digital border and immigration system, with the aim to have phased out physical documents before the end of 2024.

What to do if an individual’s photograph on the Home Office’s online check is of poor quality

Employers must check that the individual they are conducting the right to work check on matches the photograph on the online right to work check. This is usually done by meeting in person or by video call. Where the photograph on an individual’s online account is of poor quality, the guidance now states that employers should advise the individual to update their image so that it is of satisfactory quality.

Changes to when an employer needs to contact the Home Office’s Employer Checking Service (ECS) to gain legal protection

If an individual makes an application to extend their permission to stay in the UK before it expires, they can continue working in the UK until that application is decided, even if their original permission expires in the meantime. This is known as ‘3C leave’ in lieu of the immigration legislation that confers this right.

Prior to 2 February 2023, individuals with an eVisa who had a pending Home Office application that was made ‘in time’, could only demonstrate their right to work by their employer using the ECS. Checks using this service can take up to 5 days (or more) to produce a result.

Since the 2 February 2023, this is no longer the position. Employers can now carry out instant online right to work checks on these people. The ECS should still be used, however, when the individual presenting themselves for work does not have an eVisa.

Changes to the position on EEA citizens

Employers are reminded to not treat applicants who were late to the EU Settlement Scheme (EUSS), and await the outcome of their application less favorably than those who made an application before the deadline.

Am I employing someone on a Skilled Worker visa in supplementary employment and what checks do I need to conduct?

Skilled Workers’ permission to stay generally allows them to carry out supplementary employment beyond the job specified on their Certificate of Sponsorship (CoS). The guidance provides details as to the conditions of supplementary employment, those being that:

  1. the job is on the Shortage Occupation List or a job in the same occupation code as that assigned on the CoS;
  2. is for no more than 20 hours a week; and
  3. the individual continues to work for their sponsor and supplementary work takes place outside of their contractual hours for their sponsored employment.

The guidance confirms that overtime for the sponsor employer does not count towards supplementary employment. The guidance also confirms that employers who offer a Skilled Worker supplementary employment must carry out a right to work check to ensure the individual has the relevant immigration permission to carry out the work. In practice this will involve checking what occupation code the individual is working under in their Skilled Worker visa and making sure the supplementary work offered falls under the same code (unless the role falls on the shortage occupation list). Documentary evidence should also be retained of the working hours to make sure they do not go beyond the limits – this is not a requirement of the updated guidance but good practice for employers.

What are the changes to the guidance on employing international Students?

The updated guidance provides useful advice to employers who seek to employ international students. As we know, the guidance sets out that not all international students are allowed to work whilst in the UK, and those that can, may be restricted on the number of hours they are permitted to work, especially during academic term time. Whether a student is allowed to work will be set out in an endorsement in their passport, eVisa or BRP, or it will be set out in the results of the online check.

Employers should confirm with the student and their education provider when the academic term is to ensure that the student is not in breach of their visa conditions. Dates should be provided by the education provider by letter or email either directly or indirectly through the student. Employers must make a determination as to whether they consider the information provided is sufficient. This is particularly important when the dates vary compared with those on the education provider’s website.

There is further guidance on student work placements and their ability to do voluntary work.

Is there any further support for employers?

The Home Office is providing new training on document fraud which can be accessed by employer by emailing IE-CAS@homeoffice.gov.uk. This, alongside the other guidance offered by the Home Office on spotting fraudulent documents, should help employers review documents with more confidence.

If we can help you with conducting right to work checks, immigration advice, review of your employment contracts, or otherwise review your exposure to risk, please get in touch with our Employment and Immigration Team.