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The adjusted right to work checks will be extended to 1 September 2021. What must you now do to carry out an individual's right to work check?

Home Office announcement - 18 June 2021

The Home Office has announced on 18 June 2021 that, following the recent announcement on step four of the roadmap, 'extended adjusted right to work checks' will be further extended to 1 September 2021.

Guidance on will be updated to reflect this change in due course.

Checking an individual’s right to work using the temporary COVID-19 adjusted check measures

Up to and including 1 September 2021, if you are carrying out a temporary adjusted check, you must:

  • ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app;
  • arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”;
  • if the worker has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system you can use the online right to work checking service while doing a video call - the applicant must give you permission to view their details;
  • employers should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.

You will not need to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 1 September 2021 (inclusive).

You will maintain a defence against a civil penalty if the check you have undertaken during this period was done in the prescribed manner (checking the document in person) or as set out in the COVID-19 adjusted checks guidance above.

COVID-19 adjusted Right to Work checks extended until 20 June 2021

Article published 17 May 2021 

The Government has announced that the usual methods of conducting manual right to work checks must resume on 21 June 2021, in line with the Roadmap for easing lockdown restrictions, and the current concession which has been in place since 30 March 2020, permitting checks to be undertaken remotely using video calls, will end. Employers will need to revert to checking original physical documents to confirm that a new recruit has the right to work in the UK.

This move has disappointed many employers, who see this as a backwards step, and also presents a practical problem because many organisations are still intending to operate remotely. So how can an employer carry out a valid right to work check on a new recruit when that employee will be working remotely?

The pre-COVID-19 guidance deals with this situation and allows for a right to work check to be carried out remotely via video call. However, the employer must see the original physical documents and cannot accept a copy or scanned version.

If it is not possible to carry out the right to work check in person, the steps you will need to follow are:

  1. The new recruit provides their original right to work documents (e.g. passport, biometric residence permit). It is recommended that these documents are either hand delivered or posted via Royal Mail Special Delivery.
  2. A subsequent video call is held to verify the identity of the new recruit against the original document.
  3. The original document is photocopied and the date written on the copy document as follows: ‘the date on which this right to work check was made: [insert date] by [insert name of person carrying out right to work check]’.
  4. The original documents are then returned to the new recruit by a secure method.

Practical considerations

There are also a number of practical concerns posed by the changes where employers continue to work remotely:

  • If the person who is carrying out the right to work check is also working remotely, employers should first check whether they consent to providing new recruits with details of their home address in order to send the original copy documents. If not, we recommend that access to the office is granted so that the individual can collect the physical documents.
  • Even if the individual consents to providing their home address, they should be asked how they intend to keep the documents safe and out of sight from others whilst in their possession. This is particularly relevant where the individual lives in a house-share.
  • Whether the person carrying out the checks has access to a photocopier and printer and, if not, how they intend to make a copy of the original documents (consider potential GDPR implications if this is carried out at a local library or other public space).
  • How the right to work check will be safely stored / returned to the office – if the right to work check is lost then an employer will not benefit from a statutory excuse if the new recruit turns out to be working illegally.
  • Send all documents by a secure method and ensure that proof of postage is retained.

It is worth thinking about these potential issues now and creating a plan of action prior to the changes coming into effect from 21 June 2021.

Online right to work checks

Not all individuals have an immigration status that can be checked online. However, if the new recruit has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system then the employer can use the online right to work checking service while doing a video call without having to see the original documents. The new recruit must first give permission to view their details.

What about new recruits who commenced work between 30 March 2020 and 20 June 2021?

The Home Office initially envisaged that a retrospective right to work check would need to be carried out on all new recruits within eight weeks of a return to the office. However, the latest guidance states that this is not necessary provided a valid remote right to work check was carried out before they commenced work.

It is advised that employers check that the remote right to work check was carried out correctly as this will form the statutory excuse against any civil penalty.

Ensure that the copy documents are on file, confirm the date the adjusted check was undertaken and state that the adjusted check was carried out due to COVID-19.

Contact our employment law or business immigration solicitors who can provide specialist advice on any employment concerns from contracts, policies and procedures, to immigration issues in both England/Wales and Scotland. 

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