Quick updates | Changes to right to work and hiring students and graduates continued in 2024

Right to Work 

When hiring individuals, it is paramount that right-to-work checks are correctly carried out. Even more so for those who hold a sponsor licence and are hiring individuals from abroad. 

Extension of who the right to work checks must be carried out on

As of 23 September this year, the right-to-work guidance also applies to employers who employ staff under a service or apprenticeship, as well as via the use of a contract of employment, whether express or implied and whether oral or in writing. This means that where the worker is not a direct employee, the right-to-work check must be carried out and evidence kept that this has been undertaken. Once this has been completed, the business will have complied with its sponsor duties.

Who is liable for a civil penalty?

The employer is considered as being liable for the civil penalty if the right-to-work checks are not carried out correctly. It is the liability of the employer and not the members of staff carrying out the checks. Even if a business is using an external identify service provider, it is the employer's obligation to ensure compliance. The employer will still be liable for the civil penalty if it is found at a later date that an employee is working without the relevant right to work, and it is "reasonably apparent" that the check was not carried out correctly. A check being carried out by a third party is not a statutory excuse unless the check is made on British and Irish nationals who hold a valid passport.

Benefits to the employer for carrying out right to work checks

As a reminder, there are reasons to carry out the check on the right to work (for those who are and are not employees) that benefit the employer:

• Heavily reducing the risk of operational and reputational damage.
• Reducing the risk of negating your health and safety and safeguarding obligations, as well as potential invalidation of your insurance.
• If you are a recruitment business, there is different legislation specific to abide by when it comes to right to work checks.
• Right to work checks are a requirement of the majority of international best practice standards and the audits that go with them.

Contractors and labour providers

Businesses should also check that their contractors and labour providers carry out these checks in accordance with the UK Visas and Immigration guidance on people that they employ, engage or supply.

Changes to students and graduates switching into the skilled worker route

As of 22 November this year, the "Tier 4" student graduate switching to a skilled worker certificate of sponsorship (CoS) is no longer available on the sponsor management system. The way that CoS' are assigned to individuals who are switching from the student or graduate route into the skilled worker route has been updated, this is now reflected on each companies sponsor licence system. 

Those who wish to sponsor a worker with a current permission as a student who wants to apply to a skilled worker route must now use the new CoS category of "skilled worker (student course complete switching to skilled worker)". 

Students directly switching to the skilled worker route will continue to be exempt from the immigration skills charge. 

This change has been welcomed as many sponsors could mistakenly choose the incorrect category when trying to sponsor graduates, which can lead to either a refusal or a delay in making a decision on the application.