Right to Work Checks: Updated Guidance for Employers

January 28th, 2022 by Jake Waddingham

The Home Office has updated the guidance on how to conduct right to work checks to prevent liability for a civil penalty. The new guidance applies to right to work checks conducted on or after 16th December 2021, with some of the changes being fully implemented throughout 2022. The changes include:

1. Introducing Digital Identity
2. EEA Citizens and non-EEA family members without lawful immigration status after 30 June 2021
3. The list of acceptable documents
4. The way in which Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) holders evidence their right to work

Digital identity for Right to Work checks

As announced by the Home Office in December 2021, the Department for Digital, Culture, Media & Sport (DCMS) are developing a Digital Identity framework to allow digital right to work checks. This will enable employers to use certified identification document validation technology (IDVT) service providers to carry out digital identity checks. This will enable checks to continue to be conducted remotely but with enhanced security.

We are currently working closely with the Home Office and DCMS to become an Identity Service Provider (IDSP) and have recently been authorised to be part of the trial framework. This will enable our clients to process digital right to work checks and DBS checks resulting in a streamline and efficient onboarding process. More guidance on remote right to work checks through digital identity can be found here. 

EEA Citizens and non-EEA family members without lawful immigration status after 30 June 2021

Following the UK leaving the European Union on 31 December 2020, EEA citizens and their family members are required to have immigration status in the UK. As a result, EEA citizens can no longer rely on an EEA passport to evidence their right to work in the UK. A grace period, which expired on 30 June 2021, allowed aspects of free movement to continue. This enabled eligible EEA citizens and their family members resident in the UK by 31 December 2020, to apply to the EU Settlement Scheme (EUSS).

The Home Office has confirmed that you as the employer, will have a continuous statutory excuse if you carried out an initial right to work check following the correct legislation and guidance that applied at the time you completed the check. For example, where an EEA citizen provided their passport or national identity card to you to prove their right to work prior to 30 June 2021.

However, after 30 June 2021, you may become aware of individuals in your workforce who are EEA citizens or non-EEA family members that have not applied to the EUSS and do not hold any other form of leave in the UK. You do not need to cease employment at the time you identify an EEA employee without status. In such circumstances, you should:

1. Advise the individual they must make an application to the EUSS within 28 days. They must then provide you with confirmation that they have been issued with a ‘digital’ or ‘non-digital’ Certificate of Application (CoA). Where they have been issued with a CoA, you must request a right to work check from the Home Office Employer Checking Service (ECS).
2. If they do not make an application within 28 days, you must take steps to cease their employment in line with right to work legislation.
3. Where a valid application has been confirmed, the ECS will give you a Positive Verification Notice (PVN). You must retain the PVN and a copy of the individual’s CoA. This will then provide you with a statutory excuse against a civil penalty for six months. This allows sufficient time for the application to be concluded and enables the individual to maintain their employment with you during that time.
4. If the individual has been granted status before the PVN expiry date, they can prove their right to work to you using the Home Office right to work online service. If they have not been granted status at the time the PVN expires, you must do a further check with the ECS in order to maintain your statutory excuse against a civil penalty.
5. If the follow-up check confirms that the application is outstanding, you will be given a further PVN for six months and would then repeat step 4 until such time as the application has been finally determined. If the follow-up check confirms the application has been finally determined and refused, then you will not be issued with a PVN and you must take steps to cease the individual’s employment.

Please note there is no requirement for retrospective checks to be undertaken on EEA citizens who entered into employment up to and including 30 June 2021.

If you employ an EEA citizen or non-EEA family member after 30 June, but they have not applied to the EUSS by the deadline and have no alternative immigration status in the UK, then they do not have the evidence to prove their right to work in the UK.

Changes to the list of acceptable right to work documents

The Home Office has made changes to List B of acceptable documents which establishes a time-limited statutory excuse.

This change includes removal of document 5 in List B Group 1 – A document issued by the Bailiwick of Jersey or the Bailiwick of Guernsey, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has made an application for leave to enter or remain under Appendix EU to the Jersey Immigration Rules or Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008, on or before 30 June 2021.

Document 2 in List B Group 2 has been amended to include the Isle of Man and with reference to ‘on or before 30 June 2021’ removed – A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man showing that the holder has made an application for leave to enter or remain under Appendix EU to the Jersey Immigration Rules or Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules, together with a Positive Verification Notice from the Home Office Employer Checking Service.

A new document has been added to List B Group 5 – A Certificate of Application (digital or non-digital) issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules (known as the EU Settlement Scheme), on or after 1 July 2021, together with a Positive Verification Notice from the Home Office Employer Checking Service.

The full list of acceptable right to work documents can be found in the guidance for applicants – Document for a Right to Work check.

How holders of Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) evidence their right to work

BRC, BRP and FWP holders can currently choose to use either the Home Office online service or their physical card to evidence their right to work to an employer. However, from 6 April 2022 BRC, BRP and FWP holders can only evidence their right to work in the UK using the Home Office online service only. You will no longer be able to accept the physical card and BRCs, BRPs and FWPs will be removed from the lists of acceptable documents.

Are you looking for support with your right to work checks?

If you are looking for support with your right to work checks then please get in touch with one of the team. Our service is flexible and you can request individual applications whether on a temporary basis to support peaks of employment, or long-term to reduce manual administration. DDC’s Right to Work checking service can support you in obtaining your statutory excuse by:

• Reducing risk to your organisation by using risk minimisation and fraud detection tools
• Providing an easy online process to verify prospective employees right to work at any time

All updates to right to work guidance, including those outlined in this article, are implemented directly to the online system. This will ensure your right to work checks are in line with Home Office and Immigration guidance whilst removing the requirement to re-train HR teams and hiring managers.

If you would like to know more on how we can help with your right to work checks, speak with our background screening experts today. We can talk you through the process, ensuring you are compliant at every stage and tailor the package to meet your requirements. Contact the team on 0116 260 3055 | 0845 644 3298 or email newenquiries@ddc.uk.net.