UK Changes Requirements for Right-to-Work and Right-to-Rent Checks; MAC Publishes Annual Report

The UK Home Office has announced that right-to-rent and right-to-work checks for biometric residence card, biometric residence permit, and frontier worker permit holders are changing effective April 6, 2022. In addition, the Migration Advisory Committee has published its 2021 annual report, making several recommendations to the Home Office on employers’ access to the labour market and foreign worker protections.

RIGHT-TO-WORK CHECK UPDATE

Beginning April 6, 2022, Biometric Residence Card (BRC), Biometric Residence Permit (BRP), and Frontier Worker Permit (FWP) holders will need to evidence their right to work using the Home Office online service. Presentation of a physical document will no longer be acceptable. Employers will no longer be able to accept or check a physical BRP, BRC, or FWP as valid proof of right to work, even if it shows a later expiry date.

Employers will not need to undertake retrospective right-to-work checks using the online system for BRC or BRP holders who commenced employment prior to and including April 5, 2022. Employers will have a statutory excuse against any civil penalty if the initial right-to-work checks were undertaken in line with the guidance that applied at the time the check was made.  

The Home Office guidance on right-to-work checks is expected to be updated again in due course.

RIGHT-TO-RENT CHECK UPDATE

Beginning April 6, 2022, BRC, BRP, and FWP holders will need to evidence their right to rent using the Home Office online service only. Presentation of a physical document will no longer be acceptable. Landlords will no longer be able to accept or check a physical BRC, BRP, or FWP as valid proof of right to rent, even if it shows a later expiry date.

Landlords will not need to undertake retrospective right-to-rent checks using the online system for BRC, BRP, or FWP holders who entered into a tenancy agreement up to and including April 5, 2022. Landlords will have a statutory excuse against any civil penalty if the initial right-to-rent checks were undertaken in line with the guidance that applied at the time the check was made.

The Home Office guidance on right-to-rent checks is expected to be updated in due course.

MAC ANNUAL REPORT

The Migration Advisory Committee (MAC) is an independent public body that advises the UK government on migration matters. In its annual report, the committee has made several recommendations to the Home Office that focus on helping to improve employers’ access to the labour market and to increase foreign worker protections.

Key recommendations include:        

• Permitting intra-company transferees to be eligible to apply for settlement.
• Adding care workers to health and care visa route and shortage occupations list (SOL). Under the current law, only senior care workers can be sponsored. This change would allow employers to sponsor care workers, subject to a minimum salary of £20,480 per year.
• Reviewing the ban on employment for asylum-seekers. Under the current law, asylum-seekers cannot work in the United Kingdom while their applications are pending. If after a year, the applicant is still awaiting a decision, he or she can apply for permission to work in roles on the SOL. The MAC says a delay in access to the labour market causes long-term damage to integration in the United Kingdom and noted that there is no evidence that an asylum-seeker’s right to work in the United Kingdom would be a factor to seek asylum in the country.
• Preventing jobs on the SOL to be paid lower salaries than market rate. Under current law, roles on the SOL may be paid 80% of the market rate for the occupation code. The MAC notes that if there is a shortage in the occupation, lower wages will not necessarily address the issue. In addition, the purpose of the market rate is to prevent resident workers being “undercut.” The committee suggests that the salary reduction should instead only apply to the general threshold of £25,600. Lastly, the MAC recommends that the lower salary threshold is only used for lower-paid occupations on the SOL.
• Establishing formalised visa routes that can be temporarily accessed. Earlier in 2021, the UK government introduced temporary visa routes for various occupations such as poultry workers, butchers, and truck drivers to assist with worker shortages in the United Kingdom. The MAC has concerns over the exact details of the routes. Noting that while these routes are valuable in the short term, the MAC suggests that it would be better to introduce a formal route with clear criteria. A lack of clear criteria reduces an employer’s ability to plan and is unlikely to generate the flows of migrant workers sought by the sectors experiencing shortages.

The Home Office would need to adopt the MAC’s recommendations into law for them to become effective. It is not mandatory for the Home Office to adopt any of the recommendations. A response from the Home Office is expected sometime this year.

If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:

London
Jennifer Connolly
Yvette Allen

Washington, DC
Shannon A. Donnelly