The Ukraine Family Scheme allows immediate and extended family members of British Nationals and people settled in the UK to come to the UK. Applicants under this scheme:
- must be applying to join or accompany their UK-based family member;
- must be Ukrainian or the immediate family member of a Ukrainian national who is applying to the Scheme; and
- must have been residing in Ukraine on or immediately before 1 January 2022.
The Government also launched the Homes for Ukraine Scheme. This scheme allows Ukrainian Nationals (along with their immediate family members who can be non-Ukrainian nationals), to be sponsored by UK residents, where those residents have suitable accommodation, for at least six months and have at least six months’ leave to be in the UK. Under both schemes, successful applicants can stay in the UK for up to three years. In each scheme individuals are able to work and access benefits in the UK.
To help employers help those on these schemes into employment smoothly, the Home Office has made concessions for Ukrainians in the UK on these new schemes when it comes to right to work checks.
We advise on all aspects of the ever-changing right to work check rules and how to avoid civil penalties, criminal sanction and related adverse consequences as a sponsor licence holder.
Ukrainians with a valid Ukrainian Passport
A UK Visas and Immigration (UKVI) concession to the Ukraine Schemes now allows those with a valid Ukraine passport to submit an application to either scheme without attending an overseas Visa Application Centre (VAC) to submit biometrics. Those who are assessed without submitting their biometrics are issued with a permission to travel letter.
On arrival, Border Force stamp the passport with permission to enter the UK, valid for six months with no restrictions on taking employment or recourse to public funds (Leave Outside the Rules or “LOTR”). This is called a Code 1A or Amended Code 1 endorsement.
In a small number of cases, when the schemes went live, a Code 1A was not available. Instead, a Code 1 was used with the “no recourse to public funds” scored out in ink and possibly initialled by Border Force staff. Similarly, a Code1/Code 1A may have been endorsed in Ukrainian passports, if those individuals had entry stamps to Ireland from 25 February 2022. The stamps were manually amended from ‘Leave to enter’ to ‘Leave to remain’ possibly with the Border Force officer’s initials. If employers identify someone who has an Irish entry stamp in their passport but does not have a Code 1/Code 1A stamp and does not hold any other form of permission to stay in the UK, they should point them towards the Home Office to make an application to stay in the UK.
An example of endorsed Code 1A and Code 1 stamps with an Immigration Officer’s date stamp can be found on page 65 of the Home Office Right to Work guidance here.
Those with a stamp or a visa in their valid Ukrainian passport which gives permission to stay under the Ukrainian Schemes, have a time-limited right to work. If an employer manually checks this document and records it correctly, this will give them a time-limited statutory excuse. A statutory excuse is an employer’s defence against a civil penalty if an employee is found not to have the right to work in the UK.
Employers will need to carry out a follow-up check of those individuals who have time-limited permission to work in the UK as per usual. This should occur when their previous permission comes to an end.
Where Border Force have granted LOTR for six months, the individual will need to obtain a Biometric Residence Permit (BRP) which will be endorsed with up to a 36-month permission to stay. This can be done at any point during the six-months validity of the stamp. BRP holders will need to use the Home Office online checking service to prove their right to work in the UK.
Any prospective employee who is a Ukrainian national who has not applied for permission to stay in the UK will not have a right to work. They should take actions to regularise their status in the UK before they are employed.
Ukrainian nationals who do not have a valid Ukrainian passport
If an individual does not have a valid Ukrainian passport, they will be required to provide their biometric information at a VAC and will then be provided with an entry clearance vignette attached to a ‘Form for Affixing the Visa’ (“FAV”). An example can be found on page 67 of the Employer’s Guidance here. Where necessary, individuals can use their FAV document as proof of their right to work, in conjunction with confirmation from the Home Office Employer Checking Service in the form of a Positive Verification Notice confirming the employee has the right to undertake the work in question.
Shortly after arrival, a BRP is available for collection, and this can be used to access the Home Office online checking tool to prove a right to work. This means, once they have collected their BRP employers are not required to make a check with the Employer Checking Service. Where employers contact the Employer Checking Service and Home Office systems show that the individual has a BRP available, employers will receive a response from the Employer Checking Service directing them to advise the individual to collect their BRP and prove their right to work using the Home Office online checking service. In this scenario Employer Checking Service will not issue a Positive Verification Notice to provide a statutory excuse and employers should use the online checking service.
It’s important to always be aware that the Home Office right to work checks guidance for employers and the code of practice on preventing illegal working are often subject to changes and updated.
For more detailed right to work advice and updates on these and other new immigration developments for UK businesses and firms abroad moving staff to the UK please contact Vanessa Ganguin.
