1 July 2024

The Home Office has updated its Right to work checks: an employer’s guide document to remove the obligation for employers to conduct follow-up checks for individuals with pre-settled status (PSS) under the European Settlement Scheme (EUSS). However, the guidance has not yet been updated to reflect a significant expansion of supplementary work conditions for Skilled Worker holders, leaving it unclear to whom this change applies.

Set out below is a summary of the key updates to the new guidance:

• removal of the requirement to conduct follow-up checks on individuals with PSS, aligning with the High Court’s decision in the case R (Independent Monitoring Authority for the Citizens’ Rights Agreement) v Secretary of State for the Home Department. The guidance now confirms that if initial right to work checks were correctly undertaken on the individual with PSS, the Home Office will not take civil penalty action against the employer, provided that the employer is not knowingly employing someone without the right to work;
• additional information on transitioning to a fully digital immigration system, including clarification that no follow-up right to work check is needed for those with a Biometric Residence Permit expiring on 31 December 2024, until their leave expires;
• inclusion of consular birth certificates in the list of acceptable documents for right to work checks which show an unlimited right to work; and
• various changes regarding the Identity Service Provider option for right-to-work checks, applicable only to British and Irish citizens with a valid passport, including clarifications regarding the accreditation process of IDSPs.

Despite these updates, the guidance fails to address the significant change in the recent Statement of Changes to the Immigration Rules, which allows Skilled Worker migrants to undertake supplementary employment in any role meeting the Skilled Worker criteria, rather than just those on the Immigration Salary List (which has replaced the previous Shortage Occupation List) or in the same profession and professional level as their primary job (as used to be the case).

Immigration practitioners had additionally hoped that the new right to work guidance would clarify a prominent uncertainty regarding these supplementary employment provisions, namely whether the provisions apply to all Skilled Workers or only new applicants. The guidance unfortunately remains silent on this point. Employers may accordingly need to await the next update to the right to work guidance to obtain certainty in this matter.

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To learn more about upcoming changes to UK immigration law, please refer to our website, contact your assigned LDI lawyer or email enquiries@lauradevine.com.