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The Home Office updated the Employer Right to Work Checks Guidance on 16 December 2021, setting out changes which will come into force from 6 April 2022.
These changes will apply to checks conducted on holders of a Biometric Residence Card (BRC), Biometric Residence Permit (BRP) or Frontier Worker Permit (FWP). Currently, BRC, BRP and FWP holders can choose either the Home Office online service or their physical card to evidence their right to work to an employer.
From 6th April 2022, holders of BRCs, BRPs and FWPs will need to evidence their right to work using the Home Office’s online service only. This means that employers will no longer be able to accept physical biometric cards alone when carrying out right to work checks. BRCs, BRPs and FWPs will be removed from the Home Office’s lists of documents that employers can accept when conducting manual right to work checks.
Employers must ensure they retain evidence of the online right to work check by saving a copy of the ‘profile’ page that confirms the individual’s right to work in the UK. This page includes the individual’s photo and the date on which the check was conducted. The individual carrying out the check will have the option of printing the profile or saving it as a PDF or HMTL file. Either the printed document or saved file should then be stored securely (either electronically or in hardcopy) for the duration of the individual’s employment and for two years afterwards. The file must then be securely destroyed.
The updated guidance confirms that employers will not be required to conduct retrospective checks on biometric card holders who demonstrated their right to work using a physical card on or before 5 April 2022. As long as the check carried out on or before 5 April 2022 was carried out correctly and in line with Home Office guidance, the employer will maintain a statutory excuse against a civil penalty for illegal working. The new rules will only apply to checks conducted from 6 April 2022 onwards, either at the start of employment, or any follow-up checks on individuals whose biometric cards are due to expire.
In light of these changes, in order to avoid civil penalties and even criminal sanctions for employing illegal workers, we recommend that employers:
- update internal policies and procedures relating to carrying out right to work checks; and
- provide staff with training to ensure that anyone who is responsible for carrying out right to work checks is confident in using the online checking tool, knows what documents/checks are acceptable evidence of right to work, and how to store the evidence.