21st June 2024
The guidance document Employer's guide to right to work checks was updated on 21 June. This document advises an employer how to conduct a right to work check and sets out the specific actions employers must take to prevent liability for a civil penalty.
The most significant updates relate to:
- Right to work checks involving EEA citizens and their non-EEA family members with presettled status under the EUSS The Home Office no longer requires employers to carry out repeat checks on holders of presettled status. A right to work check on holders of pre-settled and settled status granted under the EUSS is only required prior to the commencement of employment. Where initial checks were correctly undertaken prior to the commencement of employment on a holder of pre-settled status, and providing the employer is not knowingly employing someone without the right to work, the Home Office has confirmed they will not take civil penalty action.
- Clarification on the role of the Department for Science and Innovation Technology (DSIT), within the accreditation process of IDSPs and holding a certificate against a current version of the UK Digital Identity and Attributes Trust Framework (UKDIATF)
- Clarification on follow-up checks involving holders of short-dated Biometric Residence Permits (BRPs) and the Home Office transition to online evidence of immigration status (eVisa) As part of the development of a border and immigration system that is digital by default, physical documents are to be phased out by the end of 2024, replaced with a system of digital immigration status (eVisa) . Therefore, employers may see 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. This is not an error and the holder’s rights and entitlements are unaffected as the date refers to the expiry of the document only, and not to the holder’s immigration status. When the holder provides an employer with a share code to prove their right to work, their online profile will display the expiry date of their immigration permission, rather than the card expiry date of 31 December 2024. 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.
- Application Registration Card (ARC) holders granted permission to work in jobs on the Shortage Occupation List or Immigration Salary List The Application Registration Card (ARC) is the card used by asylum claimants to demonstrate they have made an asylum claim. Claimants granted permission to work on or before 3 April 2024 are restricted to working in jobs on the shortage occupation list published by the Home Office. Claimants granted permission to work on or after 4 April 2024 are restricted to working in jobs on Appendix: Immigration Salary List published by the Home Office. Employers may accept a new biometric style or an old-style ARC, provided they verify the right to work and any work restrictions by obtaining a Positive Verification Notice (PVN) issued by the ECS. This excuse will expire six months from the date of the PVN, when a follow-up check must be undertaken if the statutory excuse is to be retained.
- Clarification on follow-up checks of this cohort via the Home Office Employer Checking Service (ECS) The statutory excuse verifying the right to work for an asylum claimant will expire six months from the date of the PVN, when a follow-up check must be undertaken if the statutory excuse is to be retained. The follow up check must be carried out before the six-month statutory excuse expires. Any permission to work granted will come to an end if their claim is refused and any appeal rights are exhausted. Provided an employer has obtained a PVN from the ECS, they will continue to have a statutory excuse for the duration stated in the PVN unless the employer become aware that the worker is working illegally within that six-month period and continues to employ them in spite of that knowledge.
- Clarification that List A, item 6 of the acceptable documents list also includes consular birth certificates
We are in the process of updating our resources in light of the above. Updated guidance for schools will be available shortly on our #HRHub.
