United Kingdom: Changes to the Right to Work Check Process from April 2022

• Online right to work checks. From April 6, 2022, employers will no longer be able to accept physical biometric cards, including Biometric Residence Cards (BRC), Biometric Residence Permits (BRP) and Frontier Worker Permits (FWP), for right to work check purposes and instead will need to use the online service to confirm the worker’s legal right to work status.
• Retrospective checks not required. The Home Office confirmed that where the right to work check was conducted on or before April 5, 2022 based on a physical biometric card, the check will continue to be valid and a retrospective check will not be required, as long as the check was conducted correctly and in line with the guidance.

• Review internal right to work procedures. Employers should review internal right to work check processes, procedures and communications in light of the upcoming changes. While it will still be possible for employers to conduct right to work checks using physical biometric cards until April 5, 2022, employers should understand the Home Office’s online right to work procedures and plan internal communications and training on the new requirements between now and April 2022.
• Consider providing staff refresher training. Employers should ensure all staff who conduct right to work checks are familiar with the Home Office’s online right to work checking service and how such checks are conducted, including the records which must be retained.
• Follow on checks. While retrospective checks are not required on individuals who have established their right to work using physical biometric cards, employers will need to conduct follow on checks before the expiry of a biometric card if the Home Office online service was not used for the initial right to work check. If an employer chooses to conduct follow on checks now and identifies an existing employee who no longer has the right to work, including European Economic Area (EEA) nationals who should have applied under the EU Settlement Scheme, the employer is required to take the appropriate action.

Biometric card holders may continue to evidence their right to work using physical biometric cards until April 5, 2022. Employers must ensure that any internal procedural updates or communications do not discriminate against those who wish to use their physical card to evidence their right to work.

• Right to work checks. Right to work checks are a mandatory part of the employee hiring process in the United Kingdom. Employers must conduct checks in line with the employer guidance at the relevant time.
• Biometric cards. The Home Office introduced biometric cards in November 2008 and these are the main form of physical evidence of lawful residence in the United Kingdom. A BRP is provided to individuals granted permission to enter the United Kingdom or extend their visa for longer than six months, and to those granted permanent residence in the United Kingdom. Non-EEA family members of an EEA citizen are provided with a BRC. A FWP is issued to EEA citizens who are resident outside the United Kingdom but are economically active (employed or self-employed) in the United Kingdom.
• eVisas. As part of the Home Office’s wider digital transformation, immigration status is increasingly being issued in digital-only format. This is already in place for many routes including the EU Settlement Scheme or EEA or those under British nationals (overseas) status applying for permission to enter under the Points Based System. Additionally, the Home Office recently announced that applicants for permission to stay under the Skilled Worker and Student routes are issued permission in the form of an eVisa, without a physical BRP.

Fragomen’s dedicated Compliance & Audit team is on hand to discuss, review and assist with navigating these changes, assist in amending a company’s right to work checking procedures and compliance program, and provide training where needed.