09 March 2023
Immigration
Impact: High
Summary
The Home Office has recently updated its guidance on right to work checks carried out by employers.
The Detail
Clarification regarding use of an Identity Service Provider (IDSP) for right to work checks
The guidance confirms that where Identification Verification Technology (IDVT) provided by an IDSP is used for British or Irish passport holders to demonstrate their right to work, employers will have statutory excuse against civil penalty should the individual turn out to be an illegal worker. However, if a document still needs to be seen in person, or a UKVI online ‘View and Prove’ right to work check is undertaken, a statutory excuse will not be established if this check was physically performed by an IDSP. An IDSP can support you in collating copies, however the in-person sighting and sign-off remains with you.
Clarification is also provided that in all cases, employers must still be satisfied that the person presenting themselves for employment on day 1 is consistent with the right to work check that was undertaken. This can be done in person or via video call.
Right to work check for eVisa holders with an outstanding in-time application
On 26 January 2023, the Home Office expanded the capability of their online ‘View and Prove’ right to work check service, allowing eVisa holders who applied for an in-time eVisa application in the UK to generate a share code to temporarily evidence their right to work, whilst their application is pending. This will provide employers with a statutory excuse against civil penalties for six months. Once the application is decided, or at the end of the statutory excuse period, employers must conduct a follow up right to work check with the individual.
This is however only applicable to individuals that satisfy the below requirements:
For everyone else, the employer would need to contact the Employer Checking Service to verify the employee’s right to work in the UK.
Although this new online right to work check function allows the employer to conduct a right to work check on eVisa holders whilst their application is pending, it is important to note that a positive right to work will only be confirmed in limited circumstances. Change of employment applications, for example, the employer would still need to wait until the application is approved, before carrying out the right to work.
Acceptable document for manual right to work checks to include Readmission to the UK (RUK) endorsements.
An additional document has been added to List A of accepted documents to establish a continuous statutory excuse. A manual right to work check can now also be conducted on a valid passport showing the holder is entitled to readmission to the UK (RUK endorsement). This is normally applicable to those who have been granted the right to readmission as returning residents at any time and are not subject to the 2 years’ absence limit restriction from the UK.
Information on sponsored workers and students
A new section has been added to the guidance in relation to supplementary work for Skilled Workers. If an employer is providing supplementary employment to a Skilled Worker, they would need to carry out right to work check before the commencement of the supplementary employment, ensuring that the employee is permitted to work and is able to carry out the supplementary work (i.e. the work falls within the same SOC code stated on their Certificate of Sponsorship or is on the Shortage Occupation list).
Updates have also been made in relation to employing student migrants, providing additional guidance on the evidence accepted from the student’s sponsored education provider. Students are permitted to work full time outside of their term time, or if they have applied to switch into the Skilled Worker or Graduate visa routes during their study. In order to evidence the Student’s term time, employers require emails or letters from the student’s sponsored education provider, either directly from the sponsor education provider or indirectly provided by the student, clearly confirming the term dates. It would be up to the employer to determine whether the information provided is sufficient and when to seek further clarification.
How we can help
Vialto can help you navigate the changes mentioned in this article and review the right to work check procedure you have in place to make recommendations and suggestions.
Our Right to Work Check App continues to comply with Home Office requirements.
If you are interested in our offerings, please do not hesitate to discuss with your dedicated Vialto team and we would be happy to provide a demonstration on the technology.
Contact us
For a deeper discussion on the above, please reach out to your Vialto Partners point of contact, or alternatively:
Further information on Vialto Partners can be found here: www.vialtopartners.com
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