UK Right to Work Checks Guidance Changes: Clarifications and Legal Updates

The U.K. Home Office has updated the Employer’s Guidance on Right to Work Checks on 28 February 2023. The guidance contains important information about obligations and compliance processes for UK right to work applications made by UK-based employers. Changes include clarifications on eVisa and BRPs checks, use of ID Service Providers, and clarifications of documents for certain status holders (students).

• eVisa and pending applications

New changes are also introduced to enable some individuals with outstanding, in-time applications (for permission to stay in the UK, or an appeal, or Administrative Review (3C leave)) to prove their right to work using the Home Office online checking service. Previously such people could only rely on the Employer Checking Service, which could take several days to process. Home Office online checking service will speed up the process to establish person’s right to work in the UK for this category.

• Clarification on evidence for employing students (Annex B)

The guidance now provides additional information on what evidence employers should consider to obtain from the relevant educational institution in relation to term times for the employees who hold Student visa.  These additional documents are important to establish a statutory excuse for all student employees, because they ensure that the students do not take up employment that is in breach of the “right to work” conditions of their Student Visa and that they are permitted to undertake the work in question. The new wording states that:

‘[t]he dates should be provided by the sponsoring education provider, either directly or indirectly if the student is providing a letter or email, they have received from their sponsoring education provider setting out the required details. It would be for you, as the employer, to determine if the information provided is sufficient, whether received from the sponsoring education provider directly or via the student. For instance, where information showing course dates on the education provider’s website differs from that in any letter received, you may wish to seek further clarification.’

The onus is therefore on the employer to ensure that the information provided is a genuine reflection of the student employee’s right to work conditions, and it is important to check that the information provided is coming from the educational provider. Whilst the official website pages are commonly used, it is highly advisable that a letter confirming the person’s individual terms dates covering the full period of employment is obtained and retained.

• Information on short-dated Biometric Residence Permit cards (BRPs)

Other  new changes in line with the growing number of U.K.  eVisa holders include: confirmation that an employer should not presume that BRPs with an expiry date of 31 December 2024 are issued in error (where the individual has permission to stay ending after this date). The online right to work check should display the correct expiry date of the relevant immigration permission.

• Use of ID Service Providers (IDPS)

In relation to checks using an Identity Service Provider (IDSP), the guidance states that some providers offer services in relation to manual checks of physical documents or checks via the online service. The guidance makes it clear that ‘other than where you use an IDSP expressly for right to work checks of British or Irish citizens with a valid passport (or Irish passport card), it is not possible to establish a statutory excuse against liability for a civil penalty if the manual document-based check, or online service right to work check, is performed by an IDSP.’

Employers should therefore be aware that they cannot outsource the Right to Work checks in the UK to IDPS completely. Companies must still conduct the checks themselves on all employees who are not British or Irish citizens.