Right To Work Checks — Update

On 21 June 2024 the Home Office published an updated ‘Employer’s guide to right to work (“the Guide”). In this update we highlight the key changes to help employers stay on top of right to work compliance.

Right to Work Checks on EEA citizens & non EEA family members with pre-settled status under EU Settlement Scheme

The Guide confirms that the checks only need to be completed at the start of employment and do not need repeated.

Regarding conducting follow up checks — the employer only needs to recheck the right to work for those individuals who have time-limited permission to work in the UK.

Clarification on follow up checks for holders of biometric resident permits

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.

Biometric Residence Permit (BRP) holders must still collect their card, but they prove their right to work using the Home Office online service rather than showing the physical document.

Clarification on the role of the Department for Science & Innovation Technology

Identity Service Providers (IDSPs) can carry out digital identity verification to a range of standards or levels of confidence. The Home Office recommends that employers only accept checks via an IDSP that satisfy a minimum of a Medium Level of Confidence.

A list of certified providers is available for them to choose from on GOV.UK: Digital identity certification for right to work, right to rent and criminal record checks. It is not mandatory for the employer to use a certified provider: they may use a provider not featured within this list if they are satisfied that they are able to provide the required checks.

The employer must retain a clear copy of the IDVT identity check output for the duration of employment and for two years after the employment has come to an end.

The change relates to IDSPs applying to become certified will be required to undergo a specific audit and certification. In so doing, IDSPs must be certified by an independent certification body, which is approved by the DSIT. This will require the certification body to be accredited by, or part of the pilot assessment programme to become accredited by the United Kingdom Accreditation Service against the UKDIATF. Certification will confirm the IDSP has been independently assessed as being capable of providing ID verification services in accordance with this guidance and the standards set out in the UKDIATF.

Right to Work for Application Registration Card Holders & Follow-Up Check Clarifications

Application Registration Card holders granted permission to work in jobs on Shortage Occupation List or Immigration Salary List. In addition, clarification on follow-up checks of this cohort via the Home Office Employer Checking Service.

Clarification that List A, item 6 of the acceptable documents list also includes consular birth certificates.

Where a right to work check has been conducted using the online right to work checking service, the information is provided in real-time directly from Home Office systems and there is no requirement to check any of the documents listed below.

1. A passport (current or expired) showing the holder is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.
2. A passport or passport card (in either case, whether current or expired) showing that the holder is an Irish citizen.
3. A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted unlimited leave to enter or remain under Appendix EU(J) to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.
4. A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK or has no time limit on their stay in the UK3.
5. A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
6. A birth or adoption certificate issued in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
7. A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.

Summary

Right to work check requirements can feel complicated because there are different requirements for different types of right to work.

It is essential for employers to consider if the company’s internal policies are up to date and whether the organisation is legally compliant with right to work checks. Employers must make sure to conduct accurate RTW checks to avoid hefty fines of up to £60,000 per individual.