Employers will welcome a decision by the government to again extend the Covid-19 concession for right to work (“RTW”) checks, now until 5 April 2022 (inclusive). Physical checks were due to be required from 1 September 2021 but the government has confirmed that positive feedback regarding the remote checks influenced its decision to extend the concession.
The Home Office is seeking to introduce a digital solution for RTW checks for individuals who are unable to use the Home Office online Employer Checking Service such as UK and Irish citizens. Ultimately, it is hoped that remote RTW checks can permanently be carried out post-pandemic but the final form of such a system is unknown and may require legislative change.
RTW checks should be carried out for every prospective employee, regardless of nationality. Employers in general do not break the law if they fail to carry out a check but risk a civil penalty of up to £20,000 per illegal worker if no check was carried out. If an employer knows or has reasonable cause to believe one of its employees is working illegally, it also risks criminal prosecution. Furthermore, if an employer is a sponsor of work visas, the failure to carry out RTW checks could result in the temporary suspension of its ability to sponsor workers or lead to the removal of its sponsor licence altogether.
Retrospective checks will not be required for those who had a COVID-19 adjusted check between 30 March 2020 and 5 April 2022 (inclusive). Employers should keep records to evidence that such checks were carried out in accordance with the guidance. The prospective employee should have sent a scanned copy or photo of their original documents via email or a mobile app. A video call should then have been arranged with the individual the check the original document against the scanned copy. The date on which the check took place should be recorded and marked as “adjusted check undertaken on [insert date] due to COVID-19”.
The absence of this specific wording alone may result in the check being deemed invalid.
In light of the current skills shortage and to avoid delays to recruitment, it is more important then ever that employers implement robust HR systems that ensure RTW checks are carried out for each employee, records of such checks are maintained, and that the expiry dates of right to work checks for employees with time-limited permission to work in the UK are monitored to ensure that they do not breach their visa conditions.
For advice and guidance on right to work checks and other business immigration matters, you can contact our business immigration team