Government issues revised guidance for employers in right to work checks
On 28 February 2023, the Government issued its latest update to its right to work guidance which will retrospectively apply to any right to work checks carried out on or after 26 January 2023 by employers. The guidance is essential reading for all employers to ensure that right to work checks are carried out correctly and to minimise the risk of receiving a civil penalty.
The key changes compared to the version, last published in April 2022, include:
- further information on the use of Identity Document Validation Technology (IDVT) and Identity Service Providers (IDSPs) in right to work checks;
- the ability for certain individuals with outstanding but in-time applications for permission to stay in the UK (or appeal, or administrative review) to prove their right to work using the Home Office online checking service;
- confirmation that Re-Admission to the UK (RUK) endorsements are an acceptable document for the purposes of right to work checks;
- information on sponsored work and student categories; and
- information on short-dated Biometric Residence Permits (BRPs).
The guidance also reflects the end of COVID-19 temporary adjusted checks from September 2022, which allowed for the right to work and the identity of employees to be checked remotely. In a nutshell, that now leaves employers needing to check the right to work in one of three ways: an online Home Office check; a manual check; or by way of using an IDSP that offers IDVT.
It is worth noting that the latest guidance does not appear to amend the rules of the EU settlement scheme (EUSS) further to the landmark case of Independent Monitoring Authority v Secretary of State for the Home Department, in which the High Court held that the EUSS has failed to protect the rights of EU citizens by requiring holders of pre-settled status to convert that status into permanent residence.
