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6 June 2023

What changes have there been to right to work guidance for employers?

With thanks to Aké Achi, Director of Migrants at Work, for providing his expertise on this issue.

The intersection of employment and immigration rules are complex and right to work rules are confusing. Through the Challenge the Checks campaign, our coalition has found evidence of the damage this confusion is causing for migrant workers and employers. An essential part of this campaign is to explain this incredibly complex area in order to attempt to tackle the adverse effects on migrants.

The guidance advises an employer how to conduct a right to work check and sets out the specific actions you can take to prevent liability for a civil penalty. This is called establishing a statutory excuse against liability for a penalty¹.

Right to Work Guidance for Employers

The Home Office has published guidance for employers’ Employer’s guide to right to work checks’ on how to conduct a right to work check. The first guidance was published by the Home Office on 16 February 2008, and followed by several new publications and amendments over the years. Since February 2008, the Home Office has amended the guidance at least 29 times. Each one of them remains relevant and employers must refer to them, where relevant. 

This makes it all extremely complicated, and the amendments and changes to the ‘Employer’s right to work checks guide’ can bring even more problems. Here we have listed some of the most important and major changes that have been made, and how they have impacted workers.

Proving right to work

The biggest challenge came about through the 2014 changes. If you have valid leave to remain in an expired passport, it is now not acceptable as proof of right to work.  A current and valid passport had to be used². This has meant people have had to renew their passports by applying for a biometric residence permit and pay additional fees to prove their ‘right to work’ so the employer can establish a statutory excuse. 

There are also cases of people being told they can no longer remain employed because their passport has expired, and have been wrongly and ‘illegally’ terminated from their jobs because of this change.

Since July 2015, BRPs are the only evidence of lawful residence currently issued by the Home Office to most non-EEA nationals and their dependents granted permission to remain in the UK for more than 6 months. But in April 2022, another significant change took place with Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) holders. These documents have been completely removed from the list of acceptable documents. It means that employers cannot accept or check a physical BRC, BRP or FWP as proof of right to work. This is in spite of the Home Office advising employers to perform a manual ‘right to work’ check. We assume this huge and substantial change is as a result of the move to a digital status only for current and future visa/BRP holders but the Home Office never says why they make these changes and why there are so many changes in a short period of time.

In the 2018 amendments, the guidance states that employers are required to use the Home Office online checking service when carrying out a right to work check in order to establish a statutory excuse. This reflects the amendment brought in by the Immigration [Restriction on Employment]. Here is the issue: one the one hand, the law says that workers who have permission to work can work, and they are not required to evidence their right to work to employers, but on the other hand, the Home Office tells the employer they have to do a right to work check either using the online checking service or via a manual check, but they cannot legally force the worker to do the right to work check. There is no legal requirement to do so. 

In addition, in the Employer’s guide to right to work checks, the Home Office tells workers, especially asylum seekers and British and Irish citizens, that some immigration documents issued by the Home Office are valid immigration documents which they can use to evidence their right to work, even if it is expired. However, at the same time in another bit of guidance, the Home Office tells employers that they cannot establish a statutory excuse because the same documents are not “trusted documents”.

This is all the result of unnecessarily complex Home Office policy which states that while the leave itself is valid, it has to be in a current document for it to be accepted as part of a right to work check. The Home Office has not made this clear. These are just a few of the issues and contradictions that exist in the system which can have devastating impacts on migrant workers. 

Case study: Miss W Sims v The London Borough of Lewisham and Governing Body of Adamsrill Primary School

Miss W Sims (an American national) claimed she was unfairly dismissed and experienced race discrimination in April 2018. She was asked to provide evidence of her right to work through a DBS check. She produced a number of documents including an expired American passport which contained her indefinite leave to remain (IRL) stamp. Her current passport did not contain this stamp. She had previously been told that her old passport with ILR stamp could be used as evidence and her status could not be revoked.  At this time, the DBS system would not allow them to move beyond the visa section and she did not possess a Biometric Residents Permit (BRP) at that time. The employer dismissed her because of “her inability to satisfy” the right to work check. 

The school’s Human Resources department also told her that the claimant and her mother were “illegal immigrants”, that her American passport was forged and that she had been “evading the authorities”.

Upon dismissal in April 2018, Miss W Sims contacted the Citizens Advice Bureau on the same day and made multiple efforts to seek assistance, but was advised before any employment tribunal, she should first resolve her immigration status. This advice was made despite a three-month time limit to bring a claim. As a result, her local MP wrote to the Home Office on her behalf recommending that the fee for a biometric residency permit (BRP) be waived. Almost ten months later, she received her BRP following an application to the Windrush taskforce. 

Over those ten months, she suffered financial hardship and did not receive any benefits until March 2019. She noted during the trial that she was terrified immigration enforcement would arrest her for being “illegal in the country”. The Tribunal found in favour of Miss W Sims and was awarded the sum of £18,000 as compensation. 

¹Home Office , Employer’s guide to rights to work checks –  each guidance starts with this sentence on the very first page ‘about the guidance’.

²These require an employer to accept only leave (For example, documents which contain an expiry date must now be current (except those showing that the holder is a British citizen, a citizen of the UK and Colonies having the right of abode, a national of an European Economic Area (EEA) country or Switzerland or their family members with permanent residence).for example Indefinite Leave to Remain). This creates a problem for those who hold an Immigration Status Document issued by the Home Office before November 2008, which was  in a current passport.