Blog - 06/03/2023
Changes to Right to Work Checks from 28 February 2023 – what employers need to know
The Home Office’s guidance document “Employer’s guide to right to work checks” was last updated on 6 April 2022. Further updates to this guidance document have now been introduced as of 28 February 2023, which now includes further clarification for employers. HR professionals or those responsible for on-boarding are strongly encouraged to read the latest guidance document to familiarise themselves with the latest changes.
The most significant changes to the guidance relate to:
- Statutory excuses following the end of Covie-19 temporary adjusted checks;
- The use of Identity Document Validation Technology (IDVT) by Identity Service Providers (IDSPs) to support manual and online right to work checks;
- Changes enabling some individuals with an outstanding, in-time application for permission to stay in the UK, or an appeal, or administrative review to prove their right to work using the online checking service;
- Supplementary employment for sponsored workers
- Employment for students; and
- Short-dated Biometric Residence Permit (BRP) cards and vignettes.
How can Right to Work Checks be carried out?
Since 1 October 2022, there are three ways to carry out right to work checks on employees:
- A manual, in-person right to work check – this can be carried out on employees of all nationalities. The employer is to inspect an original document specified in the guidance and certify that a physical inspection of the document has taken place.
- A right to work check using IDVT via the services of an IDSP – this can only be used on British and Irish nationals and was first enabled on 6 April 2022. IDSPs complete the digital identity verification element for such nationals who hold a valid passport on behalf of employers.
- A Home Office online right to work checking service – this can only be used on non-British or Irish citizens and is completed via the gov.uk website.
A correct right to work check, executed in line with the Home Office’s Right to Work Checks guidance, operates as a statutory excuse for employers against liability for a civil penalty.
This means employers who carry out such checks could avoid being issued a Civil Penalty of £20,000 per employee that is later discovered not to have permission to work in the UK.
What are the updates?
Clarification on Covid-19 temporary adjusted checks
The previous update to the guidance had already announced the end of Covid-19 temporary adjusted right to work checks. Since 1 October 2022, employers must carry out one of the prescribed checks listed above before an individual’s employment begins.
The recent update confirms that there is no need for employers to carry out retrospective checks on employees who had a Covid-19 adjusted check between 30 March 2020 and 30 September 2022 (inclusive).
If checks carried out during this time were carried out in the manner prescribed by the Home Office, this is a statutory excuse for employers against liability for a Civil Penalty.
The use of IDSPs to support manual work checks
From 6 April 2022, employers were given the option of using IDSPs to complete digital identity checks on prospective British and Irish national hires who hold valid passports – NB Irish nationals may also present a passport card. Digital identity checks only confirm that an employee’s identity is valid and belongs to the person claiming it.
Where an organisation is using an IDSP provider, you should ensure you follow these steps:
- Step 1: Home Office recommendation is that employers only accept checks via an IDSP that satisfy a minimum of a Medium Level of Confidence.
- Step 2: Employer must satisfy themselves that the photograph and biographic details on the output from the IDVT check are consistent with the individual presenting themselves. This can be done in person or by video call.
- Step 3: Retain a clear copy of the IDVT check output for duration of employment and up to 2 years post termination of employment.
The latest updates have now provided employers with the added option of using IDSPs to support their manual, in-person checks of physical documents or checks via the Home Office online checking service (i.e. where those individuals hold a BRC, BRP card or status under the EU Settlement Scheme).
However, employers will have no statutory excuse where a manual, in-person check or Home Office online check is carried out by an IDSP. Employers must therefore still continue to conduct checks on original documents provided by employees and retain evidence of such checks.
|When does using an IDSP give employers a statutory excuse?|
|IDVT – for British and Irish nationals||Manual, in-person checks||Home office online checking service|
Home Office online checking service for certain individuals
Previously, where employers wished to verify the right to work for individuals with an outstanding, in-time application for permission to stay in the UK, or an appeal, or administrative review, the only way to do so was to contact the Home Office’s Employer Checking Service (ECS). This was the only way for employers to establish a statutory excuse.
As of 28 February 2023, the Home Office online checking service now supports right to work checks for individuals who are eVisa holders with outstanding, in-time applications (i.e. an application made before their existing permission expires), or appeals or administrative reviews. Employers can ask such individuals to provide share codes and conduct right to work checks using the Home Office online checking service.
An online check carried out in accordance with the Home Office’s guidance will serve as a statutory excuse for employers.
However, as the Home Office continue to move to digital by default, some individuals may not be supported by the online service. Should this be the case, employers would need to contact the Employer checking Service for right to work confirmation.
Supplementary work for sponsored workers
Those who hold a Skilled Worker visa are allowed to carry out supplementary conditions provided the following conditions are met:
- Employment is a job on the Shortage Occupation List or in the same occupation code as the job for which the Certificate of Sponsorship was assigned
- Employment is not for more than 20 hours a week; and
- The individual continues to work for their sponsor and any supplementary work takes place outside of their contracted hours for their sponsored employment.
Where supplementary employment is provided to a Skilled Worker, as part of right to work checks, employers will need to ensure that such individuals are permitted to work and that they are able to carry out the employment offered.
Employment for students
As per the Immigration Rules, the guidance now confirms that students are not permitted to fill a permanent full-time vacancy unless they are applying to switch to the Skilled Worker or Graduate routes.
Students applying to switch to the Skilled Worker route can take up permanent, full-time vacancies up to 3 months prior to completing their course and those switching to the Graduate route can do so on successful completion of their course.
Those on a Doctorate Extension Scheme are allowed to take up permanent, full-time vacancies.
Short-dated BRP cards and vignettes
Employers may have seen BRP cards with an expiry date of 31 December 2024 where the holder has permission to stay in the UK that ends after that date.
The guidance confirms that this date is not an error on the BRP, but is instead a result of the Home Office’s move to digital by default. As such, the BRP holder’s rights and entitlements are unaffected. A share code generated by the BRP holder will confirm the correct expiry date of their immigration permission.
Should an employee be required to start work before their BRP is collected, employers will be required to conduct a manual right to work check on the basis of the visa vignette in the employee’s passport. However, as the visa vignette is only valid for 90 calendar days from the date of issue, employers must conduct a further right to work check using the online service once the BRP is collected and the share code is provided.
This further check must take place in order for an employer’s statutory excuse to continue.
To summarise, employers have more options within the three ways of which right to work checks can be carried out. The services of IDSPs can now be employed for manual, in-person checks – this service is likely to involve a fee which may vary from different IDSPs. And the Home Office online checking service now supports more individuals.
Employers must continue to comply with right to work checks to maintain a statutory excuse to prevent liability for a Civil Penalty.
If you require assistance or further information with the above, please do not hesitate to contact the Head of Immigration, Sundeep Rathod.
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Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.
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