How to conduct a right to work
check when employing a
12 May 2022
In response to the war in Ukraine, the UK government has introduced bespoke visa schemes for Ukrainian nationals and their family members who have been forced to flee their homes. As of 5 May 2022, a total of 95,500 visas have been issued under the schemes.
The three schemes in place are:
- The Ukraine Family Scheme – Allows Ukrainian nationals to come to the UK to join an immediate or extended family member.
- The Homes for Ukraine Sponsorship Scheme – Allows Ukrainian nationals and their immediate family members to come to the UK where they have an approved UK sponsor.
- The Ukraine Extension Scheme – Allows Ukrainian nationals and their family members to stay in the UK if they hold any valid UK visa, or held one that expired on or after 1 January 2022.
Ukrainian nationals holding permission under any of the above schemes will be permitted to live, work and study in the UK and access public funds.
Employing a Ukrainian national
Since Russia invaded Ukraine earlier this year, businesses and individuals across the UK have rallied to support the Ukrainian people, from donating essential supplies and funding to offering safe accommodation to families arriving in the UK. Many businesses have shown their support by offering employment to Ukrainians coming to the UK under the schemes.
Although employers are not required to provide sponsorship to employees who hold permission under the Ukraine visa schemes, they must still carry out a right to work check before employment commences. Failure to conduct the correct checks could result in your business receiving a fine or civil penalty if that person is later found to be working for you illegally.
Individuals arriving in the UK under the Ukraine visa schemes will be issued with a Biometric Residence Permit (BRP), a document issued to foreign nationals who have been granted a visa or immigration permission to live, study or work in the UK. Recent changes to the rules around right to work checks mean that Biometric Residence Permit (BRP) holders must now evidence their right to work using the Home Office online service only, and employers can no longer accept physical cards.
The Home Office has recently published new guidance for employers on conducting right to work checks on Ukrainian nationals arriving in the UK under the schemes.
How to conduct an online right to work check
The Home Office online right to work check service is free to use. To use the service, you will need the individual’s date of birth and their share code, which they can obtain online here. An online check can then be carried out following these three steps:
- Use the Home Office online right to work checking service by visiting https://www.gov.uk/view-right-to-work
- Satisfy yourself that any photograph on the online right to work check is of the individual presenting themselves for work.
- Retain and securely store a clear copy of the response provided by the online right to work check.
Ukrainians with a valid Ukrainian Passport
A concession to the Ukraine Schemes was introduced on 15 March 2022, which allows those with a valid Ukraine passport to submit an application to either Scheme without attending an overseas Visa Application Centre (VAC) to submit biometrics. Those who are assessed without submitting their biometrics are issued with a permission to travel letter.
On arrival, Border Force stamp the passport with permission to enter the UK, valid for six months with no restrictions on taking employment or recourse to public funds – Leave Outside the Rules (LOTR). This is a Code 1A or Amended Code 1 endorsement.
Where Border Force have granted LOTR for six months, the individual will need to submit their biometric information in the UK in order to obtain a BRP which will be endorsed with up to 3 years (36 months) permission to stay. This can be done at any point during the six months validity of the stamp. Once the Ukrainian national has obtained their BRP, a right to work check can be conducted using the online service as outlined above.
Those with a stamp or a visa in their Ukrainian passport granting them permission to stay under the Ukrainian schemes have a time-limited right to work. If an employer manually checks this document as outlined in the guidance and records it correctly, this will give them a time-limited statutory excuse. These endorsements are already included in the list of acceptable documents for a manual right to work check. Employers will need to carry out a follow-up check of those individuals who have time-limited permission to work in the UK. This should occur when their previous permission comes to an end.
Any prospective employee who is a Ukrainian national, who has not applied for permission to stay in the UK, will not have a right to work. This means you should not employ them until they have taken action to regularise their status in the UK.
Ukrainian nationals who do not have a valid Ukrainian passport
If an individual does not have a valid Ukrainian passport, they will be required to provide their biometric information at a VAC before travelling to the UK. They will then be provided with an entry clearance vignette attached to a ‘Form for Affixing the Visa’ (FAV). Shortly after arrival, a Biometric Residence Permit (BRP) will be available for collection, and this document can be used to carry out the online right to work check.
Where necessary, individuals can use their FAV document to prove their right to work, in conjunction with confirmation from the Home Office Employer Checking Service (ECS) in the form of a Positive Verification Notice (PVN). The ECS is an online service employers can use to check an employee’s or potential employee’s immigration status if they cannot show their documents or online immigration status.
Once an individual with an entry clearance vignette attached to a FAV is in the UK, they should collect their BRP urgently so this can be used for right to work checks as normal. This will allow a statutory excuse to be established for the full period of permission to stay.
Once the employee has collected their BRP, employers are not required to make a check using the ECS. Where employers contact the ECS and the Home Office systems show that the individual has a BRP available, employers will receive a response directing them to advise the individual to collect their BRP and prove their right to work using the Home Office online service.
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