United Kingdom: Updated Right to Work Guidance Released

March 2, 2023

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Country / Territory

At a Glance

On February 28, 2023, the Home Office issued updated employer guidance on right to work (RTW) checks regarding: 

  • Liability for employers relying on Identity Service Providers (IDSPs) to support manual and Home Office online RTW checks of British and Irish nationals; 
  • Change of process for timely filed work visa extension applications without sufficient documentation; 
  • How to manage short-dated Biometric Residence Permits (BRPs) where the end-date does not align with individual immigration permission;  
  • When RTW checks will not be accepted as valid when based on poor quality photographs; and 
  • A new acceptable document that if checked, would satisfy the RTW procedure. 

The situation

The Home Office issued updated employer guidance on right to work (RTW) checks. 

Guidance included the following: 

Updated Guidance Previous Guidance Impact
    • Employer still has liability even if engaging an Identity Service Provider (IDSP). The new guidance states employers may be liable for civil penalties even if they outsource the entire RTW check process for British and Irish nationals, including likeness checks (when the person appearing in the video call is checked against their digital profile containing their photo and immigration status they hold), to an IDSP or other third party.  

In January 2022, the Home Office had issued guidance which states that IDSPs, including Digital Identity Document Validation Technology, could be used to check the identity and RTW of British and Irish citizens who held valid passports. 

 

 When engaging an IDSP to assist with conducting RTW checks for British and Irish citizens, employers must ensure that they are obtaining the required evidence of the check from the IDSP and conduct the likeness check themselves shortly before or on day one of employment. This will protect them from facing civil liability which can include penalties of up to GBP 20,000.  
    • Change of process for timely-filed work visa extension applications without sufficient documentation. Employers now have two options to verify the RTW for individuals who have filed a timely application but cannot provide acceptable documentation to prove their RTW. They can either: 
      • Use an online RTW service for individuals who were issued a BRP, Biometric Residence Card (BRC), Frontier Worker Permit (FWP) or eVisa status e-visa; or
      • Use an Employer Checking Service (ECS) for all other instances.  
 Previously, employers in this scenario only had the option of the ECS option.  The burden will now be on the employer to determine an individual’s status and review internal processes to ensure the correct follow-up option is completed. 
    • Individuals with Short-dated Biometric Residence Permits (BRP) can check RTW online. Individuals with BRPs expiring on or before December 31, 2024 (whose immigration permission extends past this date due to the phasing out of the BRPs) can check their RTW online. 
    • As previously announced, beginning January 1, 2025, individuals will not need a BRP and will instead be able to prove their immigration status online. 
 There was no guidance on whether short-dated BRPs could use online RTWs. 
    • This change serves solely to provide official guidance on this issue.
    •  Employers should already be aware that BRPs have not been acceptable evidence of RTW since April 2022, so employers should be conducting RTW checks using the Home Office online RTW service to confirm immigration status. 
    • Photo quality on online RTW checks. The Home Office has clarified that an RTW check based on a likeness check using a poor-quality photograph will not be accepted as valid.  
 There was no previous guidance on this issue. 
    • Employers may be required to pay a fine if a RTW is conducted improperly due to poor photograph quality.  
    • If an individual’s photograph is of poor quality or displaying incorrectly, the employer should advise the individual to update the image on their Visas and Immigration account before continuing with the RTW check. 
    • Addition to List A documents. A passport showing a re-admission to the United Kingdom (RUK) endorsement has been added to List A - the list of acceptable documents establishing a continuous statutory excuse (a defence against an allegation that the RTW check was not completed).  
 Previously, this document was not on the list.  Applicants will benefit from having an additional document available for use to establish a statutory excuse. 
  • Online RTW introduced. UK Visas and Immigration introduced an online service to check eligible foreign nationals’ right to work in 2019. 
  • COVID-19 pandemic impact. During the COVID-19 pandemic, many concessions were granted around RTW checks to make it easier for employers to onboard individuals. The concessions expired on September 30, 2022.
  • Regular updates. The new guidance was provided as part of a regular update by the Home Office to clarify or add guidance to compliance requirements. 

Fragomen’s dedicated Compliance & Audit team is available to discuss, review and assist with navigating these changes, and to discuss right to work checking processes where needed.  

This alert is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen or send an email to [email protected]. 

 

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