The new codes of practice will come into force on 6 April 2022, when the way employers will conduct right to work checks will also change.
The Home Office consulted on proposed amendments to the unlawful discrimination while preventing illegal working code of practice in February 2022. Following the consultation, two draft codes of practice were published on 3 March 2022. The final versions of the codes are almost identical to those draft versions.
Both codes of practice are statutory codes. This means courts and Tribunals may take into account whether an employer followed the codes as far as is relevant in a particular case. In the case of the code of practice on illegal working, the Home Office will also have regard to whether the codes have been followed when considering appropriate penalties in the event of illegal working.
This code of practice sets out the checks employers should carry out in order to avoid civil penalties in the event of illegal working. It also explains the factors the Home Office take into account in order to determine the amount of any penalty issued. There is a new section on conducting right to work checks on British and Irish passport holders using an identity service provider although it is not expected that any identity service providers will be able to provide these services until later in 2022. References to eVisas and carrying out online right to work checks are also included. Perhaps the most significant change is the removal of Biometric Residence Cards and Biometric Residence Permits from the lists of acceptable documents. From 6 April 2022 holders of these documents will only able to evidence their right to work using the Home Office online service.
This code of practice is to be followed by employers when carrying out right to work checks in recruitment or in the course of employing staff to ensure that they do not discriminate. The code of practice has been updated to include references to eVisas, making it clear that job applicants who hold an eVisa should not be treated more or less favourably by employers.