The Employer’s guide to right to work checks was last updated on 23 September 2024. In this article we flag the key changes for employers.

One of the updates relates to the liberalisation of the rules on supplementary employment for Skilled Workers. To find out more about this change, read our article on Quick guide for employers: supplementary employment. 

Right to work checks apply to self-employment and substitute arrangements

The guidance strongly encourages right to work checks on anyone entering a work relationship, including self-employed contractors and anyone they may substitute to work in their place. In this article, we use the term ‘self-employed’ to mean individuals who do not fall under the definition of an employee.

The guidance states:

Even if the workers you use or supply are not your employees…there are compelling reasons why you should check that anyone doing so has a right to work. Some examples include: 

• If illegal workers are removed from your business, it may disrupt your operations and result in reputational damage. 
• There could be adverse impacts on your health and safety and safeguarding obligations, as well as potential invalidation of your insurance, if the identity, qualifications and skill levels of individuals doing work for you are not as claimed. 
• Different legislation specific to recruitment businesses requires that right to work checks are established. 
• Right to work checks are also a requirement of the majority of international best practice standards and the audits that go with them. 

This list is not exhaustive. 

Accordingly, you are strongly encouraged to check that your contractors and labour providers carry out right to work checks in accordance with this guidance on people they employ, engage or supply (or carry out these checks yourself). This includes anyone in your supply chain using a substitute to perform work on their behalf.

This is interesting because employers engaging with the self-employed are not subject to the statutory Right to Work Scheme. If they complete right to work checks and retain evidence that they have done so, they will not obtain a statutory excuse if it later transpires that a worker does not have the right to work in the UK. It begs the question, why should employers carry out these checks? 

The Home Office and enforcement teams have made it clear that they are undergoing a crackdown on illegal working. The latest data confirms a 25% increase in illegal working arrests since the election. Many organisations have had their name splashed in the headlines, causing reputational damage and business disruption. The Home Office also report that since July 2022, 450 sponsor licences have been revoked as a result.

Affected organisations should check any contracts with agencies that supply staff to do work for your business. These should contain warranties confirming the agency has carried out the prescribed right to work check and that their staff have the right to work in the capacity and for the duration supplied to you. You may also consider requesting evidence of the right to work checks and even conducting the checks yourself. At the every least, if you are not already aware, familiarise yourself with the Employer’s guide to right to work checks.

Clarification on who is subject to repeat right to work checks

The focus for repeat checks is on those who have time-limited permission to work in the UK. A repeat check should be performed on or before the date that their permission ends. 

Employers should be made aware that an impromptu repeat right to work check may be needed if a manual check was performed on a BRP before 6 April 2022. See our recent article for more information about how right to work checks are impacted by the phase out of physical immigration documents and the transition to eVisas, Quick guide for employers: eVisas and when to perform a repeat right to work check.

The guidance confirms that if the initial check confirms an individual has indefinite leave to enter or remain in the UK, or status under the EU Settlement Scheme, then there is no requirement to carry out a repeat check. 

Other minor changes

These changes reflect a series of minor, but relevant changes from the latest versions of the employer’s guide to right to work checks.

• The Ukraine Schemes Annex has been updated to reflect that two of the three schemes have now closed. The Homes for Ukraine scheme is the only scheme that remains open. It also confirms the Ukraine Permission Extension Scheme will open in early 2025.
• The list of acceptable documents for a manual right to work check has been updated.  It now includes: 
   
  • A consular birth registration certificate, which is considered acceptable as evidence of a permanent right to work. This type of birth certificate is issued to a British citizen born abroad.
  • An ILR endorsement in a current passport from Jersey, Guernsey or the Isle of Man. This is evidence of a permanent right to work.
• The guidance confirms that asylum seekers with specific work permission stated on their Application Registration Card can work in either
   
  • Jobs on the pre 4-April Shortage Occupation List. Their ARC will state “work permitted shortage OCC”; or
  • Jobs on the current Immigration Salary List. Their ARC will state “Permission to Work para 360”.
• There is a clarification of the role of the Department for Science and Innovation Technology (DSIT) in accrediting an Identity Service Provider (IDSP) intending to provide Identity Verification Technology (IDVT) as part of a digital right to work check for a British or Irish citizen who holds a valid passport. This will require the certification body to be accredited by, or part of the pilot assessment to become accredited by the United Kingdom Accreditation Service (UKAS) against the UKDIATF.

If you have any queries about the issues raised in this article or would like to find out about our Immigration compliance audit service and related training and tools, please contact a member of our immigration team.