Right to Work Check Guidance – Key Changes for Employers

On 21 June 2024, the Home Office updated its Employer Right to Work Check Guidance. This updated guidance introduces several significant changes aimed at streamlining the right to work verification process for employers. Here’s a summary of the main updates:

Simplified Checks for Pre-Settled Status holders under the EU Settlement Scheme (EUSS)

The updated guidance clarifies that employers no longer need to perform repeated right to work checks on employees who hold pre-settled status under the EU Settlement Scheme (EUSS). A single check at the beginning of employment is sufficient for those with pre-settled and settled status. This change follows the Government’s decision in May 2024 to automatically extend pre-settled status from two years to five years and remove the expiry date from digital profiles used in online checking services.

Transition to Digital Immigration Status for BRP Holders

Employers do not need to re-check an employee’s right to work when their Biometric Residence Permit (BRP) card expires, as long as the employee’s immigration permission has not expired and a valid right to work check was carried out in the first instance. Physical BRP cards are being phased out by the end of 2024, transitioning to eVisas. Employers may encounter BRP cards with an expiration date of 31 December 2024, even if the holder’s permission extends beyond that date. In such cases, the holder’s online profile will show the true expiration of their immigration permission, and follow-up checks should be based on this date.

Digital Identity Services

The guidance provides clarity on the role of the Department for Science, Innovation and Technology (DSIT) in accrediting Identity Service Providers (IDSPs) and maintaining certificates according to the UK Digital Identity and Attributes Trust Framework (UKDIATF). This ensures that employers use accredited services for verifying digital identities, which will become increasingly important as physical documents are replaced by digital ones.

Employment Permissions for Asylum Seekers

For asylum seekers with Application Registration Cards (ARCs), the guidance specifies work permissions and necessary follow-up checks. Asylum claimants who have been granted permission to work for over 12 months can work in specific job categories:

– Those permitted to work before April 3, 2024, are restricted to roles on the shortage occupation list, indicated by “work permission shortage OCC” on their ARCs.

– Those granted work permission on or after April 4, 2024, must work in jobs listed on the Appendix: Immigration Salary List, with ARCs stating “Permission to work para 360”.

Employers must verify these permissions through a Positive Verification Notice (PVN) from the Home Office Employer Checking Service (ECS), with follow-up checks required within six months to retain compliance.

Compliance and Penalties

Employers must adhere to these updated guidelines to avoid significant penalties. Non-compliance could result in fines of up to £60,000 per illegal worker, loss of the ability to sponsor migrant workers, and potential criminal charges.

If you have any questions on right to work checks, contact us today (hyperlink) to speak to a qualified immigration solicitor.

Digitalisation of Immigration Status: The eVisa

The UK is moving towards a fully digital immigration system by 2025, with eVisas playing a crucial role. An eVisa, a digital record of an individual’s immigration status, can be accessed via the ‘View and Prove Your Immigration Status’ service. This system links immigration status to a passport, eliminating the need for physical documents like BRPs.

The Home Office is rolling out eVisas in phases, starting with BRP holders invited to create UKVI accounts linked to their eVisas. By the end of 2024, all migrants should be allowed to transition to eVisas, enhancing security and convenience.

Potential Issues with eVisa Rollout

There have been concerns regarding the Home Office’s method of inviting individuals to create UKVI accounts. Issues include impersonal emails that might be ignored or marked as spam. Immigration solicitors have called for more personalised communication to avoid confusion and ensure compliance. Failure to properly inform individuals could lead to significant issues, such as being unable to enforce rights or re-enter the UK.

Future Outlook

The shift towards digital visas is a significant step in modernising the UK’s immigration system. However, the effectiveness of this transition depends on clear and effective communication from the Home Office. The coming months will be crucial in determining whether this move will lead to a streamlined process or if further complications, reminiscent of past issues like the Windrush scandal, will arise.

Stay tuned for updates as we continue to monitor the implementation of these changes. If you have any questions, please contact our Immigration Lawyers, who would be happy to help.