News & Insights

Updated Guidance on Right to Work Checks

The UK Government has issued updated right to work check guidance for employers.

All employers in the UK have a responsibility to prevent illegal working, and this is done by conducting simple right to work checks to ensure that the individual is not disqualified from carrying out work due to their immigration status. The new guidance sets out exactly how employers should conduct these checks in order to obtain a statutory excuse against liability for a civil penalty in the event that an employer has negligently employed an illegal migrant worker. The guidance also confirms that the COVID-19 temporary adjusted checks are no longer sufficient as of 1 October 2022.

Employers must do one of the following before a new employee commences employment:

  1. A manual right to work check (all employees)
  2. A right to work check using Identity Document Validation Technology (‘IDVT’) via the services of an identity service provider (‘IDSP’) (British and Irish citizens only)
  3. A Home Office online right to work check (non-British and non-Irish citizens)

Conducting a Home Office online right to work check:

Online checks can be used for migrant workers and will provide the employer with a statutory excuse against a civil penalty. You can do an online check by using the online service on GOV.UK. In circumstances in which an online check is not possible, employers should conduct a manual check. Individuals with an eVisa can only use the online service to prove their right to work. A Biometric Residence Card (BRC), Biometric Resident Permit (BRP) or Frontier Worker Permit (FWP) are not sufficient as proof of right to work.

To prove right to work, the individual will generate a 9-character share code which can be passed to their employer which, alongside the individual’s date of birth, enables employers to gather the relevant right to work documents.

Employers must then check that the photograph online is of the individual presenting themselves for work, also know as the ‘imposter check’. Evidence of these checks must be stored securely for the duration of employment and for two years afterwards.

Biometric Residence Permits:

BRPs provide evidence of an individual’s immigration status in the UK and contain the holder’s unique biometric identifiers (fingerprints / digital photograph) within the chip, as well as a photograph and biographical information.

The Home Office aim to have a fully digitised system by 1 January 2025, with BRPs being phased out by the end of 2024. Many individuals are in possession of a BRP expiring 31 December 2024. This only means that the document expires on this date, but the underlying permission does not. Employers should instead refer to the expiry date from the online system. The UK Government are expected to publish an update in early 2024 to explain how BRP holders will evidence their rights when their BRP expires.

Things for employers to consider:

  1. Reviewing the processes of any right to work check provider and verify whether they are capable of providing a statutory excuse
  2. Adjust processes where needed in order to obtain the statutory excuse
  3. Ensure the visual check element is carried out sufficiently.

How FSP can help:

We can help by reviewing your right to work processes to ensure they are streamlined and provide your company with a statutory excuse.

FSP can advise you on all aspects of immigration and will keep you up to date with the latest developments as they are released from the Home Office.

If you require our assistance, please contact our Head of Immigration, [email protected].