On 28 February 2023, the UK Government published an updated version of the right to work checks guidance for employers. It is imperative that the updated guidance is used when carrying out a right to work (RTW) check for individuals who began employment on or after this date.

What is the purpose of the guidance?

The guidance advises employers how they should carry out RTW checks. Carrying out these checks correctly provides employers with a 'statutory excuse' (or defence) if they are found to have negligently employed an illegal worker and are issued with a civil penalty.  

What are the key changes?

We have highlighted the key changes to RTW checks for those employed on or after 28 February 2023 below:

Online checks available for individuals with outstanding visa applications

Online checks can now be used to complete RTW checks for individuals with an eVisa and an outstanding, in time application for permission to stay in the UK (or an appeal or administrative review). This should be done using the individual's share code. The Employer Checking Service should instead be used where the individual's 'digital profile' is not enabled to evidence this.

Student visa guidance

The new guidance reflects amended rules which now permit student visa holders with valid outstanding applications under the Skilled Worker or Graduate route to take up permanent, full-time vacancies. Previously this had only been possible where a student was applying to switch into the Skilled Worker route. 

Biometric residence permits (BRPs)

The Home Office has confirmed its plans to phase out physical documents by the end of 2024, in line with their intention to have a fully digitalised system by 1 January 2025. 

Since April 2022, individuals with BRPs have had to demonstrate their RTW through the online checking service using their share code, rather than using hard copy documents. The new guidance has however provided clarity for those already issued with a BRP with an expiry date of 31 December 2024. It confirms that in most cases the document will expire on that date, but the underlying permission will not be affected. 

Statutory excuse & Digital Identity Service Providers (IDSPs)

The guidance confirms that when using IDSPs to complete RTW checks for British and Irish citizens with valid passports or an Irish passport card, the employer will only be provided with a statutory excuse where the IDSP is used expressly for the RTW check. Employers will not have a statutory excuse where the RTW is done using the online service or as part of a manual document check. 

Employers should therefore ensure they conduct the IDSP check correctly in line with the guidance to obtain a statutory excuse. 

COVID-19 Temporary adjusted checks

The guidance has also been updated to reflect the fact that COVID-19 temporary adjusted checks ended on 30 September 2022. Read our previous blog for further information on the end of these checks.

How can Brodies help?

Brodies regularly carry out compliance audits for companies which have a sponsor licence to help them identify and fix gaps in their recording keeping, processes and obligations. Read our online brochure for more details.

If you would like to speak to us about your compliance duties, or arrange a compliance audit, please contact a member of our Employment and Immigration team

    Contributors

    Erin McLafferty

    Associate

    Jack Barratt

    Trainee Solicitor