Home Office issues important update to right to work guidance for employers

The Employer's guide to right to work checks (the guidance) is the main guidance document for employers to refer to when seeking to carry out right to work checks that will provide a statutory excuse against liability for an illegal working civil penalty and general compliance with the UK’s illegal working regime.

The updates cover a range of topics as set out below.

Important clarification on using IDVT for right to work checks

Since 6 April 2022, the Home Office introduced the possibility of an employer carrying out a compliant digital right to work check for British and Irish citizens with a valid British or Irish passport (or Irish passport card). This process includes the use of Identity Validation Technology (IDVT) provided by an Identity Service Provider (IDSP). IDVT provides digital identity verification by obtaining evidence of the person’s identity (e.g. a passport) and then checking the validity of the evidence and that it belongs to the person claiming it (e.g. through checking the biometric information from the passport against a selfie and liveness check of the person claiming to be the passport holder). See our earlier article on this here.

The updated guidance clarifies that although IDVT can be used as an additional optional measure to enhance pre-employment checking processes and minimise the risk of fraud, it does not form part of an employer’s statutory excuse against liability for an illegal working civil penalty in the case of a manual or online check. IDVT can only be relied on as part of the statutory excuse for a digital check.

The significant practical issue for employers is that some IDSPs and pre-employment screening providers currently use processes that involve the provider (rather than the employer) completing elements of manual and/or online right to work checks, and which may lead to a statutory excuse not being available. This may be the case if the provider accesses the Home Office’s online system directly, or if the relevant original document(s) for a manual check are not copied by an employee of the employer.

Although liability for a civil penalty only arises if an individual does not in fact have the right to work in the UK, employers who are also sponsors under the points-based system are required to comply with the right to work guidance as part of their sponsor duties. Carrying out checks in a way that does not attract a statutory excuse may lead to sponsor compliance action.

We would suggest employers consider:

• Reviewing the processes of any provider used, alongside their own internal processes, to verify whether they are capable of providing a statutory excuse;

• Adjusting processes where needed to obtain a statutory excuse (this will include ensuring that an employee of the employer carries out all elements of manual and online checks, rather than these being delegated to a third-party provider); and

• Ensuring that the visual check (imposter check) element is carried out by an employee of the employer and is adequately documented.

Please contact us if you require assistance with carrying out a review.

IDSPs using Reusable Identities

Some IDSPs have the capability to create a reusable digital identity or attribute service. What this means in practice for digital right to work checks is that the holder of a British or Irish passport (including Irish passport card) may be able to complete the document and biometric checking process once and reuse the resulting IDVT output each time they are due to start a new job, until the passport expires.

The guidance now sets out the technical requirements for reusable identities to be accepted for digital check purposes.

End of COVID-19 adjusted right to work checks

The guidance includes a reminder that COVID-19 adjusted right to work checks ended on 30 September 2022. Although employers do not have to carry out a retrospective check for employees whose right to work was checked between 30 March 2020 and 30 September 2022, standard prescribed checks must be carried out on or after 1 October 2022.

Expansion of online right to work check system capability for eVisa holders with statutory immigration permission

An eVisa holder who has made an in-country eVisa application for permission to stay in the UK may now issue a share code for an employer to verify their right to work using the online right to work check system in the following circumstances:

• They are an eVisa holder and are applying for a further eVisa for permission to stay (i.e. they have applied using the UK Immigration: ID Check app);

• They do not have permission under the EU Settlement Scheme or as a frontier worker;

• Their application has been made after 26 January 2023 and before the expiry of their existing immigration permission; and

• Their application, or any related administrative review or appeal is pending.

The employer will obtain a statutory excuse for six months once the online check has been completed in line with the guidance. They no longer need to contact the employer checking service. The employer must do a repeat check before the expiry of the six-month timeframe.

The Home Office has produced a factsheet with further information on this change.

This change will only benefit a limited number of eligible individuals initially, but will become more extensively used as eVisas are rolled out more widely between now and 2025.

Additional acceptable document for manual right to work checks

A Re-Admission to the UK (RUK) endorsement in a current passport is now footnoted (in List A) as an acceptable document for manual right to work checks. An individual who presents this endorsement has an ongoing right to work and is not required to complete a follow-up right to work check.

Expanded information on sponsored workers and students

The updated guidance now includes additional text at Annex B.

Skilled Workers

The guidance now refers to Skilled Workers’ ability to undertake limited supplementary employment with a different employer without the need to obtain additional sponsorship or immigration permission.

For an employer providing supplementary employment, the right to work check must include verification that the proposed work falls within the definition of supplementary employment and that the individual is able to carry it out. The guidance also explains that overtime with the individual’s sponsor does not count towards supplementary employment, and there is no maximum number of overtime hours that may be worked per week. The sponsor must however ensure the Skilled Worker is paid overtime at least in line with the salary stated on their Certificate of Sponsorship.

Students

Clarification is added to state that students may fill a permanent full-time vacancy if they have applied to switch to the Graduate route following successful completion of their studies.

An observation is included that notes that full-time work outside of academic term times is allowed from the day after the academic term ends. Students should confirm with their sponsor what the exact term end date is and verify this with the employer as part of the right to work check process before considering working full-time hours during term breaks.

The guidance also now states that the employer must determine the sufficiency of academic term and vacation information provided by the sponsoring education provider, e.g. by clarifying any discrepancies between information published on the education provider’s website and information contained in a letter or email provided by the education provider directly to the student.

Information on phasing out biometric residence permits

An employer must carry out an online right to work check where a person holds a biometric residence permit (BRP). They should schedule a follow-up check if the online service notes the person’s immigration permission has an expiry date.

Additional text has been inserted into the guidance noting that BRP may expire on 31 December 2024, despite the individual’s immigration permission expiring after that date, and that the employer should use the expiry date from the online system in that circumstance.

The Government’s aim is to phase out biometric residence permits (BRPs) before the end of 2024. GOV.UK will be updated in early 2024 to explain how BRP holders can evidence their rights beyond the expiry of their BRP.

The results of our recent IDSP survey confirm that employers’ highest priority for engaging an IDSP for right to work checks is obtaining an effective statutory excuse.

If you have questions about these updates or carrying out compliant right to work checks more generally, please get in touch with a member of our Immigration Team.