Right to Work Checks Update

On 28 February 2023, the Home Office updated it’s guidance on right to work check and is relevant for employers, herewith are the main changes:

Identity Documentation Validation Technology (IDVT) and Identity Service Providers (ISP)

Employers have been permitted to use IDVT to carry out digital identity checks on British and Irish nationals with valid passports since April 2022 through an ISP. However, the statutory defence for right to work checks can only be used for British and Irish nationals. If the services of an ISP is used for the manual or online right to work check, no statutory defence arises.

COVID-19 Temporary Checks

Restatement that temporary adjustment checks introduced on 20 March 2020 ended on 30 September 2022, and since 1 September 2022 employers have to conduct a prescribed right to work check.

For checks undertaken between the above dates a statutory defence continues, so long as it was undertaken in the correct way.

Outstanding applications, Appeals and Administrative Reviews

For those who fall into this category, an employer should wait at least 14 calendar days to complete a verification check through the Employer Checking Service (ECS) after the visa application, or the appeal/administrative review form has been posted to enable the Home Office time to register this.

In-time applications (referred to as 3C leave)

Where an individual’s visa is extended through Section 3C of the Immigration Act 1971, through an 'in-time' visa application to extend their stay, an employer can use the ECS which will provide a statutory defence for up to 6 months – and if this remains outstanding, a further check/s should be made at 6 monthly intervals.

Administrative reviews (AR)

An AR can be brought against some negative immigration decisions made in the UK within 14 days. An individual can remain in the country so long as the AR was lodged in time and until there is a decision made on the AR which is typically done within 28 calendar days, but an employer should conduct an ECS. It should of course be noted the Home Office system may not process the AR for up to 14 calendar days.

Biometric Residence Permits (BRP’s)

The Home Office have been limiting BRP’s to end on 31 December 2024 as the BRP system will become digitised. Individuals applying from overseas will have a vignette (physical immigration sticker) in their passport which allows them to travel for up to 90 days. Individuals in this category should collect their BRP’s from a specified Post Office within 10 days of arrival or before their vignette expires. If they collect the BRP an ECS can be conducted.

However, the employer can do a manual RTW check for those who have not collected the BRP and need to work, but this will only be valid up to the 90 days – the period stated in the vignette. For those who have not collected their BRP, an ECS cannot be carried out, but the employer can carry out a manual check – however, if it transpires the individual has no right to work, then there will be no statutory defence to illegal working.  

We are a firm of immigration solicitors based in central London established in 2002 and recommended by the Legal 500 and advise employers and individuals on immigration laws. You are welcome to contact us on +44 207 038 3980, by completing our online form or sending an email to info@rlegal.com