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It is unlawful to employ someone who does not have the right to reside and the appropriate right to work in the UK or who is working in breach of their conditions of stay. Therefore to comply with obligations to prevent illegal working, employers must:

  • Carry out “right to work” checks on all prospective employees before the employment starts.
  • Conduct follow-up checks on employees who have a time-limited permission to live and work in the UK.
  • Keep records of all the checks carried out.
  • Not employ anyone they know or have reasonable cause to believe is an illegal worker.

The Home Office updated their employers guide on right to work checks on 28 February 2023. This is the main guidance document for employers to refer to when carrying out right to work checks. If the right to work checks are conducted in accordance with the guidance, employers will have a statutory excuse against liability for an illegal working civil penalty, which can be a fine up to £20,000.

The update to the right to work checks is detailed below.

Clarification for employers on the use of Identity Document Validation Technology (IDVT) and Identity Service Providers (IDSPs)

From 6 April 2022, employers were able to use Identity Document Validation Technology (IDVT) via the services of an Identity Service Provider (IDSP) to complete the digital identity verification element of right to work checks for British and Irish citizens who hold a valid passport. Prior to April 2022, employers were already able to use IDSP`s to enhance their pre employment checking processes and minimise the risk of fraud. As such employers may have found IDSPs who offered manual checks of physical documents, or checks via the Home Office online right to work checking service.

The updated guidance has confirmed that other than where an employer uses an IDSP for right to work checks of British or Irish citizens, it is not possible to establish a statutory excuse against liability if the manual document-based check, or online service right to work check, is performed by an IDSP.

A detailed guide on how to complete a right to work check using an IDSP can be found in the guidance.

End of the COVID-19 temporary adjusted checks on 30 September

The Government had adjusted the right to work check processes in March 2020 to make it easier for employers to conduct right to work checks remotely. This adjustment was supposed to come to an end on 30 September 2022, but had been deferred to ensure that the right to work scheme continued to operate in a manner which supported employers implement long-term, post-pandemic working practices.

The guidance confirms that this adjustment has now ended and employers must check the right to work in one of the 3 prescribed ways as noted in the guidance.

Changes to enable some individuals with an outstanding, in-time application for permission to stay in the UK, or an appeal, or Administrative Review (3C leave)

The guidance has been updated to encompass the changes that came in to force on 26 January 2023 which enables some individuals to prove their right to work using the Home Office online checking service. This relates to:

  • Individuals with an outstanding, in-time application for permission to stay in the UK; or
  • Individuals with an appeal or Administrative review in the process

Where applicable, those with in time applications will now have their 3C leave reflected within their digital profile, allowing them to prove their rights such as right to work. This change will only support those who submit an in-time application after 26 January 2023 and not existing holders of 3C leave.

Phasing out of biometric residence permits

BRP holders and employers alike may have noticed BRP cards with an expiry date of 31 December 2024 even though the holder has permission to stay in the UK until after that date.

The guidance clarifies that this is not an error on the BRP but rather part of the development of an all-digital border and immigration system, with the aim to have phased out physical documents before the end of 2024.

In these circumstances the employer should use the expiry date from the online system instead.

Information on sponsored work and student categories Annex B

Skilled workers in limited circumstances are able to undertake supplementary employment without the need to obtain additional sponsorship or immigration permission. The guidance confirms that for an employer providing supplementary employment, the right to work check must include verification that the proposed work falls within the definition of supplementary employment and that the individual is able to carry it out.

In relation to students, the guidance confirms that students are not permitted to fill a permanent full-time vacancy unless they are applying to switch into the Skilled Worker or Graduate routes during their study. Changes to the Immigration Rules allow students with valid applications for these routes to take up permanent, full-time vacancies either, up to three months prior to the course completion date for the Skilled Worker route, or once they have successfully completed their course of study for the Graduate route, or where they have permission under the Doctorate Extension Scheme.

Furthermore, for students who have limited permission to work during term times, employers must obtain, copy and retain details of their academic term and vacation times covering the duration of their period of study in the UK for which they will be employed. The dates should be provided by the sponsoring education provider, either directly or indirectly if the student is providing a letter or email they have received from their sponsoring education provider. It is then up to the employer to determine if the information provided is sufficient e.g. by clarifying any discrepancies between information published on the education provider’s website and information contained in a letter or email provided by the education provider directly to the student.

Contact our employment law solicitors to ensure your business is compliant

If you or your business require advice relating to the latest changes to employment law including any of the changes outlined above, our employment lawyers will be happy to assist you. Please contact our solicitors today by completing the enquiry form below.

Key Contact

Adam Haines

Adam Haines

Employment Law and Business Immigration Partner

Adam is a partner and specialist employment lawyer with experience advising on all aspects of employment law from the beginning to the end of the employment relationship and business immigration.

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