In response to COVID-19, an adjusted right to work check process has been in place since 30 March 2020, allowing employers to conduct checks over video calls with job applicants and existing workers and by reference to scanned copies or photos of their right to work documents sent to them by email or a mobile app. This was a significant concession to the normal requirements, which stipulate that the employer must receive and check the original right to work document.
Carrying out right to work checks from 17 May onwards
The Home Office has confirmed that these temporary COVID-19 adjusted right to work check measures will cease on 16 May 2021 (the Home Office Guidance can be
found here).
From 17 May 2021, employers must either:
No retrospective checks for COVID-19 adjusted checks
When the temporary measures were implemented, employers were told that they would need to carry out follow-up checks in the usual manner (i.e. with original right to work documents) on any employees who had a COVID-19 adjusted check.
However, the Home Office has now confirmed that employers will not need to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 16 May 2021 (inclusive). Employers will maintain a defence against a civil penalty if the check undertaken during this period was done in the manner prescribed in the COVID-19 adjusted checks guidance.
Comments
Employers will no doubt welcome the change in position regarding retrospective checks. However, the point at which the adjusted checks are being brought to an end will be concerning to many employers who have no plans to open up their office until after 21 June 2021. The government’s ‘
Roadmap out of lockdown’ currently states that
“…before step 4 begins (step 4 being not before 21 June 2021) the government will complete a review of social distancing and other long-term measures… this will also inform guidance on working from home - which should continue wherever possible until this review is complete.”
Whilst arrangements will vary from employer to employer, the following approach will reduce the need for face to face checks:
- If the individual is willing to send their original documents by post this will allow for the completion of a manual check via a live video link. Employers should ensure measures are in place to securely receive, review and return original documents.
- If the individual holds a biometric residence permit, biometric residence card or is an EEA national who has been granted settled status under the EU Settlement Scheme the online right to work checking service can be used remotely.
Unfortunately, the above options do not alleviate all concerns. Some individuals may, understandably, feel uncomfortable posting such important original documents and not all individuals are eligible for the online checking service (British nationals, for example, do not qualify).
Employers may continue to use the adjusted process until 16 May but should identify now an internal policy for conducting right to work checks, carefully balancing the COVID-19 risks and compliance with immigration legislation.
For advice and guidance on right to work checks and other business immigration matters, you can contact our
business immigration team or speak to Emma Collins directly
by email or by phone on 01293 558 545.