Right to Work Guidance updated following introduction of eVisas

The Home Office has published updated guidance for employers on how to carry out right to work (RTW) checks following the decommissioning of physical biometric residence permits and biometric residence cards (BRP/BRC). The new guidance applies to checks conducted on or after 12th February 2025. In light of the recent increase in immigration enforcement, it is more important than ever that employers ensure they remain compliant with any changes concerning the prevention of illegal working.

By way of background, the Home Office ceased issuing BRPs from 31st October 2024, and those BRPs previously issued expired on 31st December 2024. From this date, physical documents have been replaced by eVisas, a form of digital immigration status. Those whose BRPs expired on 31st December 2024 have been encouraged to create a UKVI account to access their eVisa so they can view and prove their immigration status.

Notwithstanding the expiry of BRPs, the new RTW guidance confirms that individuals who have not yet created a UKVI account will be able to use their expired BRPs to access the Home Office’s online right to work checking service to prove their right to work in the UK.

The guidance also clarifies the position for migrants who have been granted their permission to enter outside the UK. Those being granted visas overseas will continue to be issued with entry clearance vignettes in their passports, which are valid for travel to the UK for 90 days. Following their arrival in the UK, the individual will have 10 calendar days or before their vignette expires (whichever is later) to create a UKVI account to access their eVisa. There will be instances where an individual is due to start work before they been able to create an eVisa account. In this scenario, employers will be able to carry out a compliant RTW check by conducting a manual check of the physical vignette, provided it is in date. A repeat check will then be required using the Home Office online checking service for the employer to retain a statutory excuse against a civil penalty beyond the vignette’s validity.

It should be noted that if, at the 90-day mark, the employee is unable to access their eVisa or use the online system, employers are not required to terminate employment if they believe the employee continues to have the right to work. However, once the 90 days has expired, employers will not be able to establish a statutory excuse if it turns out that the employee is working illegally.

The transition to eVisas has not been smooth, with reports of various technical issues. Employers should encourage all existing and prospective employees to create their UKVI account and access their eVisas as soon as possible to avoid unnecessary problems in verifying their right to work in the UK.