Home Office updates right to work guidance for employers

On 21 June 2024, the Home Office updated its right to work check guidance for employers. This includes updates on checks for holders of pre-settled status (PSS) under the EU Settlement Scheme and Biometric Residence Permits due to expire at the end of 2024.

The Home Office now only requires employers to carry out one right to work check on workers with PSS, to be completed prior to their first working day. Where the check is completed correctly, employers will not need to carry out repeat checks on the worker; the initial check will provide you with a continuous statutory excuse protecting you against a civil penalty, unless you become aware that they no longer have the right to work because, for example, they have lost PSS due to a long period of absence from the UK.

The EU Settlement Scheme was introduced to protect the position of EU citizens who established residence in the UK prior to Brexit. Applicants granted PSS were given the right to live and work in the UK for a period of five years, at the end of which they were expected to re-apply to “upgrade” their permission to Settled Status (SS). Under previous guidance, employers had to diarise the end of the five-year period and carry out follow-up checks to ensure the worker retained the right to work in the UK.

However, following a recent High Court judgment on the lawfulness of the EU Settlement Scheme regime, the Home Office is now in the process of automatically either extending PSS for a further five years or, where five years’ continuous residence can be confirmed by way of national insurance records, upgrading to SS. The recent change to the guidance implements this judgment.

It is also worth bearing in mind that, where employers choose to carry out follow-up checks on PSS holders, they must ensure that this is done in a non-discriminatory way, given that these checks are no longer required by law.

The Home Office has also updated its guidance to address the phasing out of Biometric Residence Permits (BRPs) by the end of 2024, as part of its transition to a digital “eVisa” system. Right to work for BRP holders is now proved through the provision of a share code and access to an individual’s online profile. The updated guidance provides clarification on BRPs with an expiry date of 31 December 2024, but whose right to work in the UK extends beyond this date. Where a compliant online right to work check has been completed, employers will only need to carry out follow-up checks when the permission, and not the BRP, is due to expire.