Updated right to work checks guidance published by the Home Office

Last week the Home Office published their updated right to work check guidance, Right to work checks: an employer's guide, including a new annex, Annex E, signalling a change to the right to work check process for workers holding biometric cards.

Annex E applies to workers holding a Biometric Residence Card (BRC), Biometric Residence Permit (BRP) or Frontier Worker Permit (FWP) to evidence their permission to work. 

A BRC is issued to a non-EEA national, who is a family member of an EEA citizen. A BRP is issued to individuals applying to come to the UK or extend their UK visa, for more than 6 months and those individuals who are applying for settlement in the UK. A FWP is issued to an EEA citizen who is resident outside the UK but economically active within the UK.

At present BRC, BRP or FWP holders can demonstrate their right to work in the UK in one of two ways:

1. through the Home Office online service; or 

2. by presenting their physical BRC, BRP or FWP to their employer. 

Employers must accept either method from workers and cannot insist on one method being used exclusively by their employees to demonstrate a right to work in the UK. The above two processes are to remain in place up to and including 5 April 2022.

From April 2022, it shall no longer be possible for individuals holding a BRC, BRP or FWP to evidence their right to work in the UK by presenting the physical BRC, BRP or FWP. Right to work for such individuals shall be exclusively demonstrated through the Home Office online service. In light of this change, it is likely that BRCs, BRPs and FWPs shall be removed from the lists of acceptable documents contained within the guidance.

Employers will not be required to undertake retrospective checks on BRC, BRP or FWP holders who used their physical card to evidence their right to work before 6 April 2022 and they will maintain a statutory excuse against civil penalties provided the initial checks were undertaken in accordance with the guidance in place at the time the check was conducted. If employers choose to undertake retrospective checks, they must be mindful of potential discrimination issues. In the event an existing employee is identified as no longer having the right to work, the employer is obliged to take appropriate action.

If you would like any advice or assistance regarding a right to work checks, then please do not hesitate to contact one of the experienced solicitors in our immigration team.