Date Legislation considered: 05 April 2022
Date Legislation in Force: 06 April 2022
Potential Right(s) Affected: Residence, Right to Work, Equal Treatment
What does the legislation do?
These Regulations relate to a range of matters, however only the provisions in Part 3 are within the remit of the IMA.
The Explanatory Memorandum accompanying the Regulations sets out:
“Part 3 makes changes to the controls on migrant access to employment and private rented accommodation and the prescribed checks employers, and landlords or letting agents should make in order to obtain a statutory excuse against a civil penalty for employing or letting accommodation to a person without the right to work or rent as a result of their immigration status. It brings into force revised codes of practice for employers, landlords and letting agents which specify requirements for right to work and right to rent checks, as well as revised codes of practice on avoiding discrimination when conducting checks.”
Anyone employing an individual in the UK must check the job applicant is allowed to work in the UK. These are described as right to work checks.
Similarly, landlords and letting agents in England must check that tenants who occupy their properties have the right to live in the UK. This is referred to as the right to rent scheme.
Employers, landlords or letting agents who conduct these checks in line with the guidance at that time cannot receive a civil penalty for having employed or let a property to an individual who does not have the right to live and work in the UK.
Changes introduced by Part 3 include the:
- removal of certain documents from the list of acceptable documents for manual checks of right to work or right to rent.
- addition of Certificates of Application issued after 30 June 2021 to that list.
- publication of updated statutory codes of practice for employers, landlords and agents conducting right to work checks or right to rent checks.
Removed documents
The documents removed from the list include physical biometric cards which include biometric residence cards, biometric residence permits, and frontier workers permits. This means that employers, landlords and letting agents will not be able to accept these physical documents as demonstrating the right to work or rent. Instead the biometric card must be used to access the online checking service. This is the case even if these physical documents show a later expiry date. Permanent residence cards and EEA family permits have also been removed from the list of documents.
Certificates of Application
EU and EEA EFTA citizens who made an application to the EUSS before 1 July 2021 but who are yet to receive a final decision or determination are able to rely on evidence of that application from the Home Office to enjoy their rights. This will usually (but not always) be in the form of a Certificate of Application.
Applicants to the EU Settlement Scheme after 30 June 2021, including joining family members of EU and EEA EFTA citizens, are entitled to the rights provided under Part 2 of the Withdrawal Agreement and Part 2 of the EEA EFTA Separation Agreement while their application is being determined This was recognised in an announcement made by the UK Government’s Home Office on 6 August 2021. Certificates of Application are issued to these late applicants which confirm their rights under the Agreements while their application is being determined.
Where a prospective or existing tenant or employee has a Certificate of Application confirming a valid application to the EUSS after 30 June 2021, this can be used to prove their right to rent or work when it is verified with the Home Office landlord/employer checking service.
These Regulations therefore expressly reflect in legislation that a Certificate of Application issued in response to a valid application made after 30 June 2021 is an accepted document demonstrating a right to work or rent, when verified by the Home Office Employer or Landlord Checking Services.
Codes of practice
The Home Office is required to issue codes of practice and updated codes of practice have been issued to reflect the changes:
Code of practice on preventing illegal working: Civil penalty scheme for employers
Code of practice for employers: Avoiding unlawful discrimination while preventing illegal working
Code of practice on right to rent: Civil penalty scheme for landlords and their agents.
Comments
The IMA raises no issues of concern at this stage, however any citizen experiencing difficulties in exercising their rights are encouraged to report a complaint through the IMA Portal.
The IMA welcomes the change to the legislative framework governing right to work and right to rent checks to reflect in legislation the rights of late applicants to the EUSS. This will ensure that these late applicants are able to prove their right to rent and right to work in the same way as those citizens who applied to the EUSS before the deadline on 30 June 2021.
Further information about the IMA and guidance on how to report complaints can also be found on the website..