UKVI refuses to commit to closing loophole for transgender individuals in right-to-work checks guidance

Employers are required to carry out right to work checks for any new employee or for an existing employee on a time bound visa. UKVI’s current guidance is clear on how right to work checks are to be carried out – but the guidance currently does not address how transgender individuals can adequately address discrepancies if their photographs and / or gender markers are not consistent across all documents. This is particularly challenging for individuals early in their transition who may not hold a Gender Recognition Certificate and are faced with questions from employers.

Aisha Choudhry, senior associate in Bates Wells’ Immigration team, says, “We have been lobbying UKVI to consider clarifying the position and amend their guidance to ensure that employers and employees are not impacted by this gap. We’ve so far not had a substantive response. Several of our clients have found themselves in limbo, unable to progress with a new job offer, or facing uncertainty in their current role. It can be an incredibly stressful experience. We’re calling on UKVI to take action and eliminate unnecessary stumbling blocks for employers and trans employees.”

The key issues

UKVI policy states that that if an employer has reason to believe the person represented on said document does not appear to be the same person (for example, following a name change) then the employer should satisfy themselves of the reason for discrepancy, and retain evidence of how they satisfied themselves. In the case of change of name, this could be shown by a certificate of deed poll.

However, if the discrepancy related to a different detail, such as the gender marker, there is no confirmation for employers on what is expected from them. Changing gender markers on documents can be a long process and may not happen across all documents at the same time.

Additionally, the guidance does not clarify what to do if the photographs of an employee are not consistent across the checked documents, or with their current appearance. This issue applies to online right to work checks as well, as an individual may be transitioning socially and therefore their appearance may be very different to that of the photograph on the online check.

When we contacted the UKVI to seek clarity they stated that they do not prescribe the documents which may be accepted in such cases. The UKVI have indicated that ideally, transgender candidates should have access to a nominated person in HR who is knowledgeable and available to deal with the documentation sensitively. This involves retaining only what is needed, ensuring that the data is held securely and that there is no informal sharing of this information as this could be unlawful.

In practice, we have found that many employers are uncertain how to apply the guidance nor designate a nominated person with such issues, ultimately causing delays and stress for both transgender employees and the HR teams navigating the situation.

Aisha commented, “We are continuing to challenge UKVI on the gaps in their guidance and insist its right to work policy is changed to prevent employees from being discriminated against.”