06 Mar Key updates in the Right to Work Employer’s guidance
As of 6 April 2022, a biometric card holder is no longer allowed to use their physical card as evidence of their right to work in the UK and is now required to do so via the Home Office online service.
Employers can now use Identity Document Validation Technology (IDVT) via the services of an IDSP to complete the digital identity verification element of right to work checks but this applies ONLY for British and Irish citizens who hold a valid passport (including Irish passport cards). According to the new guidance, an employer must carry out a manual check when the IDVT check is invalid.
Annex C: 3.3 If an individual is reliant upon an expired British or Irish passport (including passport cards) to prove their eligibility for the purpose of a RTW check, an IDVT check is not valid. The employer will need to carry out a manual check of the original document in the prescribed manner to obtain a statutory excuse.
It is important to note that the temporary adjustments to right to work checks, which were introduced on 30 March 2020 due of the impact of the COVID-19 pandemic, ended on 30 September 2022. This means as of 1 October 2022, it is no longer permissible to carry out checks on documents via a video link.
As a result, an employer will need to either 1) use the Home Office right to work check found here https://www.gov.uk/view-right-to-work once the share code is provided by a prospective employee with a BRP/BRC or 2) for British/Irish nationals will need to carry out a manual check/IDVT check.
There are also circumstances where a migrant no longer has valid leave, but they remain lawfully in the UK and as a result, they have a right to work/continue their employment- for instance when an in-time application is made for permission to remain in the UK, or they have a pending appeal or Administrative Review and their immigration status is protect under section 3C. In this case, the employer should contact the Home Office’s Employer Checking Service (ECS) to establish a statutory excuse.
It is the employer’s responsibility not only to correctly carry out the right to work checks but also to be familiar with the conditions attached to a migrant’s visa. For example, a student visa holder pursuing a degree in the UK can only work 20 hours per week during term time, while full-time employment is permissible during their vacation or once their academic course is completed.
It is important for a sponsored worker entering the UK to collect their BRP at the prescribed post office as soon as possible to allow the employer to carry out the right to work checks using a share code. However, the guidance confirms that:
“If they need to start work for you prior to collecting their BRP, they will be able to evidence their right to work by producing the short validity vignette in their passport which they used to travel to the UK. You will need to conduct a manual right to work check on the basis of this vignette, which must be valid at the time of the check. However, as this will expire 90 calendar days from issue, you will have to repeat the check using the online service, for the statutory excuse to continue.”
Please note that once the 90 calendar days (vignette validity) has expired, employers will not be able to establish a statutory excuse if it later transpires that the employee is working illegally.
The government has also confirmed its goal to phase out the issuing of physical documents before the end of 2024 as we move towards a system of online evidence of immigration status (eVisa).
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