Significant changes to Right to Work checks for biometric residence permits holders from 6 April 2022 | Fieldfisher
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Significant changes to Right to Work checks for biometric residence permits holders from 6 April 2022



United Kingdom

On 16 December 2021, the Home Office published updated guidance for employers, setting out how right to work checks should be carried out. One of the key changes in the new guidance is the approach that should be taken when carrying out checks for individuals holding biometric residence permits.

As it currently stands, employers are able to conduct right to work checks of biometric residence permits in one of three ways. They can either use the Home Office's online right to work checking service, use the physical card to conduct a manual check or follow the Home Office's adjusted right to work check process which has allowed employers to check physical documents virtually during the pandemic period. Employers cannot currently insist that employees use the online service to prove their right to work, and should not discriminate against those who wish to use their physical card as evidence. This will remain the position until 5 April 2022.

From 6 April 2022, employers will only be able to conduct valid right to work checks using the Home Office online right to work check service. Employers should not undertake checks by asking to see the physical biometric card, even if it is valid. BRPs (along with BRCs and FWPs) will be removed from the list of acceptable documents used to conduct a manual right to work check. If employers fail to use the online right to work checking system, then the right to work check will not be compliant. This will mean that the employer will not have a statutory excuse from a civil penalty, a fine of up to £20,000 per worker, if it emerges at a later stage that the person does not have the right to work in the UK.

Employers will not have to carry out retrospective checks on individuals who previously used their physical biometric residence permit to evidence their right to work prior to 6 April 2022. The Home Office have assured that employers will maintain the statutory excuse against any civil penalty if initial checks were made in line with the guidance in force at the time of the check.

It is very important that employers consider these changes carefully and take action accordingly as it will affect the on boarding process when employing new staff. You may need to update your recruitment and policy documents or upskill your HR staff on how to carry out the online checks correctly. Civil penalties can cost employers up to £20,000 per illegal worker. It is therefore critical that Right to Work checks are carried out in line with Home Office expectations.

The Home Office is moving towards a point where immigration status will be digitalised and immigration status documents will be obsolete. This will necessitate further changes for right to work checks over the coming months. For updates, training or advice on meeting your prevention of illegal working obligations, please contact us.

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