Changes to Right to Work checks

The Home Office has announced that from 6 April 2022, the right to work of those who hold a biometric residence card (BRC), biometric residence permit (BRP) or frontier worker permit (FWP) can only be done online.

What will employers need to do from 6 April 2022?

From this date, employers must carry out a check for individuals holding a BRC, BRP or FWP using the Home Office’s online right to work check service. It will no longer be an option to complete a manual right to work check using a physical BRC, BRP or FWP.

The employer must have the individual’s date of birth and a valid right to work share code that the individual has generated by accessing the online system for individuals. The share code is valid for 30 days.

It will not be necessary for employers to carry out a retrospective check for employees where a manual check was completed on or before 5 April 2022.

As always, employers must be careful to ensure they carry out the initial right to work check before the date the employment is due to commence, and the follow-up right to work check in line with the timings set out in the Employer right to work checks supporting guidance.

Why has the Home Office announced this change?

The announcement has been made now to give employers early notice that they will need to change their right to work check processes.

Before 6 April 2022, there are good reasons why employers may consider inviting, but not requiring, a BRC, BRP or FWP holder to allow the employer to carry out an online check rather than a manual one.

Checking BRCs
Currently, a BRC can only be accepted for a manual right to work check where the employer is satisfied that the holder has status under the EU Settlement Scheme. The simplest way to verify this is to carry out an online right to work check.

Checking BRPs
BRPs are issued to expire on 31 December 2024, even where an individual’s immigration permission is due to expire after this date. This is because the current encryption technology used in BRPs may need to be upgraded beyond this date. Carrying out an online right to work check avoids the necessity to schedule a follow-up check before the expiry date on the BRP where the person has limited immigration permission. A follow-up check is not required where an individual’s BRP states that they have indefinite leave or settled status.

The Home Office was due to make an announcement during 2024 regarding what employers will need to do to verify right to work rights at the follow-up check, but it seems likely this will simply be to do an online check. In any event, employers may prefer to carry out online right to work checks for BRP holders wherever possible to minimise the number of follow-up checks they may need to do at the end of 2024.

Checking FWPs
In the vast majority of cases, FWPs are issued electronically, so the option to complete a manual check on a physical permit will be rare.

What other announcements are expected?

Covid-19 temporary adjusted right to work checks are due to end from 6 April 2022. It is anticipated that the Home Office will make an announcement before this date regarding whether these will need to be extended further. This will likely depend on the readiness of a tool they are developing to enable employers to check the right to work of more people online, including British and Irish citizens.

Regulations will need to be laid before 6 April 2022 to implement the removal of BRCs, BRPs and FWPs as acceptable right to work documents. The regulations may also include changes to manual checks brought about by the availability of the new tool if this is ready to be rolled out by then.