Posted Date: 18th January 2022

Changes to right to work checks for biometric card holders

The government has announced that from 6 April 2022, the evidence required for right to work checks is changing for some foreign nationals. Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) holders will no longer be able to use their physical card but will have to use the Home Office online service only.  

What is a BRC, BRP and FWP?

A Biometric Residence Card is provided to non-EEA family members of an EEA citizen.

A Biometric Residence Permit is provided to individuals who apply to come to the UK or extend their UK visa for longer than 6 months, and to those who apply to settle in the UK.

A Frontier Worker Permit is provided to EEA citizens who are resident outside the UK but are economically active (employed or self-employed) in the UK.

Right to work checks prior to 6 April 2022

BRC, BRP and FWP holders can currently choose to use either the Home Office online service or their physical card to evidence their right to work to an employer. Employers can continue to conduct manual checks on physical cards for evidence of a right to work up to and including 5 April 2022.

Prior to 6 April 2022, according to government guidance employers cannot insist individuals use the online service and should not discriminate against those who wish to use their physical card. Employers can, however, ask individuals if they would like to use the online service.

Right to work checks from 6 April 2022

Employers will no longer be able to accept physical cards for the purposes of a right to work check even if it shows a later expiry date. BRCs, BRPs and FWPs will be removed from the lists of acceptable documents used to conduct a manual right to work check known as List A and List B. From 6 April 2022, BRC, BRP and FWP holders will only be able to evidence their right to work using the Home Office online service.

Do I need to carry out retrospective checks on my workers?

The government guidance confirms that retrospective checks will not be required on biometric card holders who, before 6 April 2022, used their physical card to demonstrate their right to work. Employers will maintain a statutory excuse against any civil penalty if the initial checks were undertaken in line with the guidance that applied at the time the check was made.

The government has updated its guidance, An Employer’s Guide to Right to Work Checks.

If you would like an experienced HR Consultant to help guide you with your right to work checks and other HR responsibilites, please get in touch.