The Home Office has published updated guidance in relation to the Right To Work Checks that UK employers must undertake on all UK-based employees. This latest guidance was issued on 23 September 2024.

All UK employers have a legal obligation to undertake steps to prevent ‘illegal working’ and are required to perform a Right to Work Check (RTWC) in a prescribed manner on every UK based employee to obtain verification that they have immigration permission to undertake the specific role either being offered or being undertaken. See here for the collection of RTWC documents and links for employers.

By carrying out RTWC in the correct prescribed manner(s), employers may be able to establish a statutory defence against an allegation of failing to comply with illegal working legislation.

The RTWC regime has been revised numerous times in recent years; the most recent changes have focused on introducing different types of checks per category of worker and very substantial increases in the fines to employers charged with employing ‘illegal workers’.

23 September 2024 guidance

The updated guidance has introduced a number of changes – some of the important ones for businesses include:

• The new guidance applies to RTWC undertaken on or after 13 June 2024
• It introduces a strong recommendation that employers check that their suppliers of contractors/staff are undertaking the correct RTW checks
  • note that the guidance does not yet state that unless you do ensure that suppliers/contractors are undertaking RTWC, you cannot establish a statutory defence
• Where your business works with/hires someone who is self-employed, a RTWC must be undertaken on that person to establish a statutory defence
• Additional information/clarification is included on when you should conduct follow-up checks and what to do in specific circumstances (as opposed to an initial RTWC when you are onboarding an employee), and specifies circumstances when further RTWCs must be undertaken – including:
  • When an employee is on a time limited visa and they have submitted an extension or switching application
  • Once that extension or switching application has been decided
    • Please note that where an employee has made an in-time application from within the UK they may be granted 3C Leave whilst the application is pending
• A change in requiring employers to provide ‘reasonable’ opportunities for employees to provide RTW documents – a change from ‘every’ opportunity
• The section on Allowed Supplementary employment has been updated and now confirms that such work is no longer restricted to work that must be undertaken in the same sector/within the same SOC Code/Level. Supplemental work can now be at any level and does not need to be in the same sector/role
  • It can still only be outside work that a person is sponsored for and can only be up to 20 hours per week
• Confirmation that the link for UKVI account creation is now open to all (however, please note that those with legacy paper documents and those who have been granted status as refugees may not yet able to automatically create a UKVI account)
• There is now an express liability for a sponsoring employer, where employment continues with the knowledge that a sponsored worker is working in breach of their conditions

Other developments

• The government has also previously announced a review of the Points Based System and indicated that it will restrict the ability of employers to employ foreign nationals where there is non-compliance with illegal working legislation (both immigration and employment laws).
• The government has also committed to increasing the links between its immigration and skills policies (to ‘upskill’ the British workforce) and will place ‘appropriate restrictions on visas’ as needed.
• The government has also created and funded a new Border Security Command to ‘bolster border security and disrupt … people smuggling.’