Following the announcement regarding the delay of step 4 of the roadmap, the Home Office is extending adjusted right to work (“
RTW”) to 31 August 2021 (inclusive). Employers can continue to check employees’ immigration status by using scans or copies of documents and arranging a video call to inspect the original documents on camera. By conducting RTW checks, employers will maintain a defence against a civil penalty for employing a person illegally. The Home Office has released updated advice for employers
here and updated its employer’s guide to RTW checks
here.
From 1 September 2021, employers will be required to conduct RTW checks either face to face with physical document checks or by using the Home Office online service.
No retrospective checks for Covid-19 adjusted checks
The Home Office has again confirmed that employers are not required to carry out retrospective checks on those who had a Covid-19 adjusted check between 30 March 2020 and 31 August 2021 (inclusive). Employers will maintain a defence against a civil penalty if the check undertaken during this period was undertaken in the manner prescribed in the Covid-19 adjusted checks guidance.
Online RTW Checks
The online Home Office RTW service may be used during the concession period or as an alternative to physical checks once the concession period ends. To use the service, the employee’s share code may be used on the Home Office
site. This service may only be used for individual’s with:
- A biometric residence permit/card;
- Status under the EU Settlement Scheme;
- Status under the points-based immigration system;
- British National Overseas (BNO) visa; or
- Frontier workers permit.
The employee’s consent is required to use this service and employers should not discriminate on the basis of whether or not an employee is able or willing to use the online service. Employers may only mandate online checks where the individual is on a digital status only route.
Comment
The extension to the concession is a welcome development for employers who otherwise may have experienced delays to start dates for new joiners if in-person checks were required while guidance to work from home remains in place. The Home Office is currently reviewing the RTW scheme and considering increasing digital checking aspects and implementing specialist technologies. For employers planning to switch to a hybrid or full-time model of remote working, a permanent digital system would be a welcome change.
Employers are advised during the concession period to review their current recruitment policies to consider asking if an employee has the RTW at the screening stage to allow for time to prepare for the return to in-person checks. However, in order to avoid a claim for discrimination, candidates should not be prevented from proceeding with their application if they do not already have the RTW. If the role is eligible for sponsorship, employers should consider the option of sponsorship for suitable candidates and ask for the relevant documents when the candidate is invited to interview or when the offer of employment is made. Employers are also advised to take the opportunity to review offer letters and contracts of employment to require those subject to immigration control to produce evidence of the RTW on request and to notify the employer of any changes to their immigration status.
For advice and guidance on right to work checks and other business immigration matters, you can contact our
business immigration team.