Changes to right to work checks guidance for employers

The Home Office has made several updates to its right to work checks guidance, some of which provide some important clarity for employers, particularly in relation to employing students.

• Using IDVT for right to work checks: We’ve previously reported on the new ability for employers to use a third party (an identity service provider (IDP)) to conduct right to work checks using Identity Document Validation Technology (IDVT). The right to work check guidance has been updated to clarify that although IDVT can be used as an additional optional measure to enhance pre-employment checking processes and minimise the risk of fraud, it does not form part of an employer's statutory excuse against liability for an illegal working civil penalty in the case of a manual or online check. IDVT can only be relied on as part of the statutory excuse for a digital check.
• Online checks for eVisa holders: Someone who has applied for a visa whilst in the UK and used the ID check app during the application process, can prove their right to work by supplying a share code.
• Employing students: Important clarification regarding employing students has been provided. The new guidance now confirms that employers can offer students a permanent, full time position where they have successfully completed their studies AND applied for a graduate or Skilled Worker visa.
• Phasing out BRP cards: Employers cannot accept physical BRP or BRC cards as evidence of right to work – an online check must be performed. All hard copy documents are being phased out, so some individuals may hold a card which expires on 31 December 2024, even though their permission goes beyond that date. The online check will confirm the actual date the individual has the right to work until, and it is that the employer should rely on, not the BRP card.
• COVID adjusted checks: The guidance has been updated to remind employers that COVID adjusted right to work checks came to an end in September 2022.

In other immigration related changes:

• Minimum salary for sponsoring a Skilled Worker: The going rate for sponsoring a Skilled Worker will increase to £26,200 per year (from £25,600), with effect from 12 April 2023. That said, the minimum a sponsor has to pay a Skilled Worker will always be the higher of the SOC Code salary for the role they will be carrying or the going rate.
• Pre settled status: Following a recent High Court decision, the Home Office will be updating the immigration rules to provide clarity for those with EU Pre-Settled Status. The High Court held that someone with pre-settled status does not lose their residence rights if they fail to make another application before the 5 years expires. Also, if a person with pre-settled status acquires a right of permanent residence after 5 years in the UK, they will not lose this if they fail to apply for settled status.

The immigration rules will encourage individuals to apply for settlement status, as this will make it easier for them to prove their right to reside and work in the UK, however they cannot be penalised for failing to do so.

• Electronic Travel Authorisations (ETA): Similar to the process when most of us visit the USA, the UK government is introducing an ETA scheme. The scheme will be launched in stages, starting in October 2023 for Qatari nationals, extending to all third country nationals by the end of 2024. Individuals without visa permission will have to submit an application online ahead of travelling.
• Innovator Founder route: The Innovator Founder route will be introduced on 13 April 2023 and replaces the Innovator and Start-up routes. It requires someone who wants to come to the UK to set up a business to have their business plan endorsed by a governing body. The current £50k minimum fund requirement will be removed and time in the UK under this route will count towards permanent settlement.
• Youth Mobility scheme: From 12 April 2023 Australia will have an additional 5,000 places available, and Canada another 2,000. From 29 June 2023, the upper age limit for New Zealand nationals will be extended from 30 to 35 and they will be able to secure a 3 year rather than a 2 year visa.