Changes to the Right to Work Guidance for Employers
21st August, 2024
A recent update to the Government Guidance will simplify the right to work checking process for some employees.
This will help all businesses avoid significant penalty fines and navigate the increased compliance requirements regarding right-to-work checks.
With effect from 21 June 2024, employers no longer have an obligation to carry out repeat right to work checks on individuals who hold Pre-Settled Status, namely EEA nationals and their family members.
In practice, employers who carry out an online right-to-work check via a share code for new employees with Pre-Settled Status will receive confirmation that the individual has right to work indefinitely, with no expiry date. This means they will no longer need to carry out repeat checks for these individuals.
Unfortunately, this does not eliminate the need for repeat right-to-work checks for existing employees who hold Pre-Settled Status. Employers are still required to conduct repeat checks for any current employees with time-limited permission to work (even where they hold Pre-Settled Status). However, once a right-to-work check confirms that an employee has an indefinite right-to-work, employers no longer need to carry out further checks.
Some businesses that employ large numbers of employees with Pre-Settled Status may choose to conduct repeat checks on all employees in this category, with a view to reducing the need for repeat checks. However, they will need to be careful that this does not lead to allegations that this group of employees are being treated differently or singled out, as this could result in allegations of indirect discrimination, along with employee relations issues.
Employers also need to be aware that all physical Biometric Residence Permits (BPR) will expire at the end of the year on 31 December 2024. As of August 2024, all individuals who hold physical BRPs can now set up their online Home Office account to access their eVisa to view and prove their status. Employers may want to guide their employees to resources to make sure they have done this well before the expiry date. It is also important for employers to carry out any necessary repeat right to work checks in advance. Leaving things until the last minute could result in serious difficulties for both employers and employees, particularly considering the timing of the change, which falls in the middle of the festive period when the Home Office may be running at reduced capacity and individuals might be traveling to see friends or family.
On a related note, it remains unclear whether assisting employees with the eVisa process/online account amounts to providing regulated immigration advice. As it is a criminal offence for unregulated individuals to provide this advice, we’d recommend that until we know the position, employers get in touch with our Immigration Experts and we can assist their employees with any specific queries or concerns.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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