Biometric Residence Permits - The Key Information For Employers

We recently published our How To Conduct A Right To Work Check guide to help you to make sure you are doing your right to work checks properly.

This month, we are taking a closer look at Biometric Residence Permits (BRPs), and the changes that came in last year, when using these as part of your right to work check processes.

What are BRPs?

They are permits that can be used to confirm a foreign national's:

• Identity;
• Right to stay in the UK (with any conditions on it);
• Right to study and/or work here (again with conditions); and
• Right to any public services or benefits.
  
  

Who gets them?

Usually, those who:

• Apply to come to the UK for +6 months;
• Extend their visa to +6 months; or
• Apply to settle in the UK.
  
  

What do you need to know about checking BRPs?

As employers, you have a duty to prevent illegal working. This means you have to check documents carefully and compliantly to make sure you are legally able to employ those workers. Read this article to see the steps to take to ensure you conduct right to work checks properly.  Not doing the checks properly carries civil penalties and fines. Getting it right gives you a statutory defence against those penalties.

In the How To Conduct A Right To Work Check guide, we pointed you to the list of accepted documents for manual right to work checks located on the government website, if you are doing these checks manually.

However, from 6 April 2022, Biometric Residence Permits (BRPs) were removed from the list of acceptable documents for manual checks.

So, if you are presented with a physical BRP card by an individual, you can’t use it for a manual right to work check like you could before.

Instead, you must use the Home Office’s online right to work check service. If you don’t, and you simply accept a BRP and do a manual check with it, you will not be compliant.

What does this mean in reality?

If your check is not compliant, then you will not get statutory defence which is outlined in our How To Conduct A Right To Work Check guide (if that worker does turn out to be illegally working), potentially leaving you exposed to:

• Civil penalties; including
• A fine of up to £20,000 per illegal worker; and
• An unwanted status with the Home Office.

Be sure checks are fully compliant so that in cases where your workers are found to be illegally working, you should have the benefit of that statutory defence.

What if your recruit doesn’t have their BRP when you are ready to do the check? Do you have to delay the employment start date?

Not necessarily. Ideally, the recruit will have the BRP if they are going to be a BRP holder, as migrants are actively encouraged to get these as soon as possible.

However, if they don’t have it by the time they start work, all is not lost.

There is a temporary measure in that you can check their right to work status against the short validity vignette in their passport which will give you that statutory defence (temporarily) and allow them to start work.

However, we advise that this is only on the premise that they are actively seeking their BRP. The vignette will expire after 30 days and you will then need to check their BRP using the online service at that point which, hopefully, they will have, by then, got.

What if the vignette has expired and they still have not got their BRP for you to use the online service? Do you have to terminate employment?

You don’t necessarily have to terminate employment immediately. As long as you genuinely believe that they do continue to have the right to work, then you can keep employing them while you wait for the BRP, but this is a risk as you will not be covered by the statutory defence if that employee does later turn out to be working illegally.

I strongly recommend this is very carefully considered and that employers take advice on the matter before making any decisions about terminating (or not terminating) employment. Make sure you have a genuine belief your recruit has the right to work and document that carefully,  as well as seeking advice from an Employment Law specialist. 

What if you had previously done a manual check of a BRP, before April 2022? Do you have to re-do it using the online service?

No, you don’t have to do retrospective checks. As long as your check was in line with the requirements at the time you did it, you will maintain that statutory defence. Always double-check the date you did it and what was acceptable at that point to protect yourself. If you are in any doubt, re-do the check online.

My Tips

These changes will affect your onboarding process for new staff.  Here are the important points to consider;

• Update your recruitment policy documents to reflect this change, making it clear that BRPs cannot now be checked manually. 
• Train staff involved in recruitment on the changes. Getting it wrong can be extreamely costly and would have a big impact on your status with the Home Office, resulting in wider implications.
• Think about checking right to work checks carried out using BRPs since 6 April 2022 to make sure they were done online.
• Seek Employment Law advice if you are concerned that you may have non-compliant checks.
• Consider re-doing any BRP checks online if you are concerned that the original check may not have been done in accordance with the requirements pre-6 April 2022.
• If you are in a position where you are having to consider terminating employment due to the circumstances described in this article, take professional advice first as there may be implications you aren't aware of. You have the duty to prevent illegal working and taking advice from an Employment Law specialist on practical solutions, whilst remaining within the law, can be crucial for managing your business.

If you need legal advice on right to work checks, get in touch with us to get support from our Legal 500 solicitors.  Email enquiries@bridgeehr.co.uk or call 01904 949033 to speak to an Employment Law solicitor.