United Kingdom: Updated Right to Work Guidance Has Been Released

No additional RTW checks necessary for certain Biometric Residence Permit (BRPs) holders. The updated guidance confirms that employers of individuals with a physical BRP do not need to conduct further RTW checks, provided that:

• a valid initial RTW check was performed according to the guidance in effect at the time;
• the employee’s physical BRP has an expiry date of December 31, 2024; and
• the employer is monitoring the actual expiry date of the employee’s immigration permission.

The guidance also states that if employers are not tracking the underlying visa expiry date, they must complete a new RTW check to confirm the expiry date. 

The new RTW guidance represents a relaxation of the UK Home Office’s previously indicated position on follow-up RTW checks for short-dated BRPs.  

The updated guidance confirms that a new check is not required and that a statutory excuse will continue to the date of visa expiry (post December 31, 2024).

As best practice, Fragomen recommends that unless evidence has been retained to validate the recorded visa expiry date, a new RTW check should be conducted to ensure that the date has been recorded correctly.

Automatic pre-settled EU Settlement Scheme (EUSS) extensions and RTW checks.

• The guidance confirms that employers who have already conducted a valid RTW check for an employee with pre-settled status under the EUSS will not need to repeat the check in the future (regardless of any indicated expiry date) provided that the employee retains their work rights and remains continuously employed with the same employer.
• As previously reported, on May 21, 2024, the duration of pre-settled status automatic extensions under the EUSS increased to five years, up from two years. With expiry dates being removed from the digital profiles for ‘Right to Work’, ‘Right to Rent’ and ‘View and Prove’ checks. The latest guidance further confirms these changes.

This policy change reduces the administrative burden for employers, who may no longer need to perform additional RTW checks for EUSS employees.

Employers should consider reviewing their RTW check processes to ensure they are and were complete and up to date with relevant legislation.

RTW checks for asylum claimants. The guidance reminds employers that:

• Follow-up Employer Checking Service (ECS) checks must be completed before the six-month expiry of the individual’s RTW. The ECS provides a mechanism to conduct a RTW check where the standard process is not possible.
• Asylum claimants granted permission to work on or before April 3, 2024 are restricted to working in jobs on the old Shortage Occupation List.
• Asylum claimants granted permission to work from April 4, 2024 are restricted to those roles listed on the new Immigration Salary List.

Employers who have successfully checked an asylum claimant’s RTW via the ECS should track the six-month expiry date to ensure they perform a follow-up check when necessary.

Additionally, employers should ensure that any asylum claimant employee is working in a role available to them under the appropriate occupation list (either the Shortage Occupation List, or the Immigration Salary list, depending on the employee).