On 21 June 2024, the Home Office released an updated version of its full guide to right to work checks. In this article we explain what those changes are and how they impact the right to work checking process for employers.
Why are right to work checks important?
Employers must carry out checks on all workers and employees before employment begins and (in some cases) during employment. The checks must be done in accordance with the guidance in place at the time. If an employer does this, it will have a statutory defence against a civil penalty for illegal working if the employee is later found to be working in the UK without permission.
If the checks are not done correctly or at all, the employer can face fines which have recently tripled to up to £60,000 per illegal worker.
What are the changes that have been made to the guidance
The latest version of the employers guide to right to work checks was updated on 21 June 2024 with the following changes:
- Employers no longer need to conduct repeat checks on employees with pre-settled status. Presumably this is because their status is now automatically extended by the Home Office – this change will be welcomed by employers as it will reduce right to work administration. However it is important employers do not take the same approach with other types of immigration status where permission is time limited – follow up checks in those situations must still be carried out.
- Where an employee has a biometric residence permit with an expiry date of 31 December 2024, the guidance reiterates that the individual’s immigration permission may extend beyond that date. The guidance also confirms that “A follow up check is not needed until the employee’s permission is due to expire. Where the 31 December 2024 was taken as the expiry date, a follow up check will be required”. This is a little confusing, however the key point for employers to be aware of is that if they see a biometric residence permit that seemingly expires on 31 December 2024, this is not necessarily expiry of the visa – the online check that employers are now required to carry out for holders of BRP cards will confirm the actual visa expiry date, and this is the date they should focus on for the purposes of repeat checks.
- The new guidance confirms that asylum seekers whose claim has been outstanding for 12+ months, if permission to work was granted on or before 3 April 2024, they can only carry out work in a role that is listed on the Shortage Occupation List. For permission to work granted from 4 April 2024 onwards, they can only carry out work in a role that is listed on the immigration salary list. The Shortage Occupation List is no longer easily accessible but a version can be found by looking at the archived copies of the Immigration Rules – GOV.UK.
- List A of acceptable documents for manual right to work checks has been updated to confirm that under ‘birth certificates’, consular birth certificates are now accepted.
- The section on supplementary employment has been updated to confirm that sponsored visa holders can work an additional 20 hours per week with another employer provided it is either in the same SOC code as their sponsored role or it is in a role that is listed on the Immigration Salary List. Frustratingly the guidance still has not been updated to confirm that for Skilled Workers, supplementary employment can be in any role capable of sponsorship.
- There has also been some clarification on the section on using IDSPs – in particular the guidance clarifies the role of the Department for Science and Innovation Technology (DSIT), within the accreditation process of IDSPs and around holding a certificate against a current version of the UK Digital Identity and Attributes Trust Framework (UKDIATF).
While these may seem like minor updates, it is really important that employers are attuned to the ever changing guidance and ensure the checks they are conducting are fully compliant.
For more information speak to our business immigration team.
