THE PATH TO DIGITAL IMMIGRATION: navigating the UK's transition to eVisas

Businesses employing non-British workers need to prepare for a significant change in UK immigration procedures—one that requires immediate attention. Traditionally, non-British workers have relied on a Biometric Residence Permit (BRP), a physical identity card confirming their immigration status, visa validity, and conditions of stay, as proof of their right to work. However, in the wake of Brexit, the Home Office has begun transitioning to digital immigration statuses, initially focusing on EU nationals and their families. This digitalisation initiative is now expanding to cover all immigration routes, including work and family-based visas.

Recently, the Home Office expanded access to the digital system, inviting all BRP holders to transition their physical immigration status to a digital eVisa through a UK Visas & Immigration (UKVI) portal. Employers should encourage their non-British workers to set up a UKVI account to access their eVisa, especially since all BRPs will be abolished by 31 December 2024. Notably, most BRPs currently show this date as their expiration, even if the actual visa expiry is different.

To complete the transition, individuals will need their original BRP or passport (if the BRP is unavailable, such as in cases of loss), their date of birth, and access to the UK Immigration ID Check App. They can then create a UKVI account via www.gov.uk/get-access-evisa.

Starting in October 2024, the Home Office will no longer issue BRPs; all new visas will be issued as eVisas. This shift to a digital system offers several advantages, such as eliminating the risk of losing a visa and reducing delays in visa issuance, which currently involve waiting for BRPs to be collected from post offices or received by post. Through their UKVI portal, workers can easily share their immigration status with third parties such as employers and landlords, update their contact and document details, and review their visa conditions.

For employers, it’s important to note that a follow-up right-to-work check is not required for employees who have transitioned to eVisas, provided that a proper right-to-work check was conducted before their employment began and the correct visa expiry date was recorded. However, if a right-to-work check is necessary for an eVisa holder, the employer must request a share code from the worker (valid for 90 days) to conduct the check online. This process will generate a photograph of the worker, which the employer must verify against the person presenting themselves for work. This verification can be conducted in person or via video call. Employers must retain a copy of the check result, either electronically in PDF format or as a hardcopy, for the duration of the worker’s employment and for two years thereafter. It’s also best practice to document the date of the check, the person who conducted it, and confirmation that the photograph has been verified in person or via video call.

Importantly, the online right-to-work check provides employers with a statutory excuse against civil penalties in the event of illegal working. The consequences of failing to carry out the required checks are severe, including civil penalties of up to £60,000 per illegal worker, potential criminal convictions with up to five years' imprisonment and unlimited fines, and the revocation of a sponsor licence.

Now may be an opportune time for businesses to consider conducting a mock compliance audit to ensure their HR systems are robust and compliant with the various immigration changes. While this article focuses on rightto-work checks for eVisas, there are situations where an online check may not be possible. In such cases, seeking immigration advice is crucial to ensure compliance.

Changes to employment law

There has been little substantial reform as yet given the new Government has been in power for only two months. However, the Government has promised to make a wide range of reforms to follow through on its manifesto promise to ‘Make Work Pay’.

These proposals include:

• Banning zero hours contracts: workers would have the right to a contract which reflects the number of hours they regularly work and notice of any change in shifts with compensation payable in proportion to the notice given for any cancelled or curtailed shifts.

• Making flexible working the default position from day one of employment: it is not clear how this will work in practice as all employees already have the right to request flexible working from their first day of employment. This is likely to apply to all workers, and employers will be required to accommodate this as far as is reasonable.

• Ensuring the right to claim unfair dismissal is a day one right (other than during any probationary period). Currently employees must be employed for two years or more to claim unfair dismissal. This change will require employers to follow the appropriate procedures before dismissing employees to avoid such claims and may lead to more claims for unfair dismissal.

• Making it unlawful to dismiss a woman for six months after her return to work from maternity leave, except in specified circumstances.

These changes are likely to be introduced into Parliament by 12 October 2024 and may come into force later in the year, or in 2025.

In order to strengthen protection for minorities, the Government is also proposing to ensure a right to equal pay for ethnic minorities and disabled people and introduce mandatory ethnicity and disability pay reporting for employers with 250 or more employees, similar to the gender pay reporting obligation which was brought in by the former government.