Home Office releases updated right to work guidance – again!

Right to work guidance update 

In the third right to work update in as many months, the Home Office has updated its ‘Employer right to work checks supporting guidance’ with new changes effective from 31 August 2021. In addition to incorporating the extension of the COVID-19 temporary adjusted right to work process to 05 April 2022, the new guidance introduces changes to the way those with an outstanding application to the EU Settlement Scheme can evidence their right to work. 

EEA citizens and joining family members with pending applications

Most significantly, the new guidance builds on the announcement made by the Home Office on 6 August 2021 confirming that it will grant temporary protection for more applicants to the EU Settlement Scheme (EUSS), including late applicants and joining family members who will have protection for 3 months after their arrival in the UK, pending the outcome of an EUSS application made during that period.

Joining family members cannot usually enter the UK without receiving their status as they are normally entered into the UK as a visitor, and visitors in the UK cannot make an application to the EUSS from within the UK. However, a temporary concession is outlined in the caseworker guidance, which states that the requirement that joining family members must not be in the UK as a visitor is disapplied as a temporary concession where the applicant’s leave as a visitor expires on or before 30 December 2021 (this includes applicants who entered the UK from 1 January 2021 to 30 June 2021 with six months’ visitor leave, and those who arrive after 30 June 2021 but whose visitor leave is of less than six months’ duration. It also includes applicants who make a late application, if they are still visitors when they apply, where there are reasonable grounds for them having missed the deadline). This concession ends on 6 October 2021, with new UK immigration laws coming into effect allowing joining family members to enter as visitors regardless of the end date of their leave in the UK as visitors.

The updated Employers’ guidance therefore states that EU Settlement Scheme (EUSS) applicants and joining family members will now be able to take up new employment while they await the outcome of their EUSS application. 

Evidencing the right to work with a pending EUSS application

Employers must provide prospective employees with every opportunity to prove their right to work and should not discriminate against those with an outstanding, valid application. The way applicants can prove their right to work depends on how they received confirmation of their application and when they applied:

Receipt of application submitted to EUSS

Individuals who submitted paper EUSS applications on or before 30 June 2021 may only have received a letter or email notification acknowledging receipt of the application by the time an employer carries out a right to work check. In these circumstances, the employer must request a right to work check from the Employer Checking Service (EUSS) to verify this document to establish a statutory defence to illegal working.

Certificate of Application – digital or non-digital?

If an applicant has been issued with a Certificate of Application (CoA), the first thing to do is to check if this is a digital or non-digital CoA. 

1) Digital CoAs

Most individuals who submitted a valid application on or before 30 June 2021 have been issued with a digital CoA. Employers can ask applicants with a digital CoA for a share code, and with the share code (and the applicant’s date of birth), they should be able to check the prospective employee’s right to work immediately via the Home Office online right to work service without contacting the Employer Checking Service.

For applicants who submitted their applications on or after 1 July 2021, the online right to work service should direct employers to verify the applicant’s right to work via the Employer Checking Service (ECS). Employers must contact the ECS in these circumstances and obtain a positive verification notice in order to obtain a statutory excuse to illegal working.

2) Non-digital CoAs

A non-digital CoA is an email or letter sent to the individual, advising them how prospective employers can check their right to work. If the non-digital CoA is dated on or before 30 June 2021, employers should ask the prospective employee if they have also been issued with a digital CoA and can provide the employer with a share code to use the online right to work service instead.

Where the non-digital CoA is for an application made to the EUSS on or after 1 July 2021, the employer must make a copy of the document and retain the copy together with a Positive Verification Notice (PVN) from the ECS to establish a statutory defence to illegal working.

List A and List B changes

To reflect the above changes, the ‘List B’ list of acceptable documents for manual right to work checks at Annex 7 to the guidance has been updated as follows.

Changes made to List B

• The previous document number 5 in List B, Group 1 has been removed as it was a duplicate entry of document number 2 in List B, Group 2 (this referred to a document issued by the Bailiwick of Jersey or Guernsey showing that the holder made an application under Appendix EU to the Jersey Immigration Rules or to the Bailiwick Immigration Rules, together with a Positive Verification Notice).
• Document number 2 in List B, Group 2 has also been amended to include documents issued by the Isle of Man (in addition to the Bailiwick of Jersey and the Bailiwick of Guernsey). In addition, references to the document showing that the application must have been submitted on or before 30 June 2021 have been removed, to reflect the fact that late applicants can now take on new employment while their EUSS applications remain pending.
• An additional document (number 5) in List B, Group 2 has been added – this document is a Certificate of Application (digital or non-digital) issued by the Home Office showing that the holder made an application to the EUSS on or after 1 July 2021, together with a Positive Verification Notice from the Home Office Employer Checking Service. Again, this is to reflect the fact that that EUSS applicants can undertake new employment while their applications are pending even if they applied after the 30 June 2021 deadline. 

The new lists A and B can be found starting on page 36 of the updated guidance. The usual employers’ right to work checklist is yet to be updated. Nevertheless, employers should take care to use the up-to-date lists for Right to Work checks from 31 August 2021. 

Extension to Covid-19 temporary adjusted right to work checks

The updated guidance incorporates the extension of the Covid-19 right to work check process in Annex 10 and confirms that this adjusted process will remain in place until and including 05 April 2022. Further guidance will be released prior to 06 April 2022 on the subsequent process, which is likely to embrace a longer-term digital solution for those who cannot currently use the Home Office online right to work checking service (such as British and Irish nationals). 

Questions?

If employers are unsure of a prospective employee’s right to work status, they should contact the Employer Enquiry helpline on 0300 790 6268 (Monday to Thursday 9am to 4.45pm and Fridays 9am to 4.30pm). Further guidance for EEA citizens on proving their immigration status (‘eVisa’) can be found here.

It is important for employers to provide those with pending EUSS applications every opportunity to prove their status and ensure they are not discriminating against them. We can refer you to our employment colleagues if you have any questions about this.

If you require further advice on the changes or right to work more generally, please do not hesitate to contact Anita de Atouguia or Zahira Patel.