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COVID-19: Temporary changes to ‘right to work’ checks

UK employers must conduct ‘right to work’ checks on every prospective employee prior to employment.

UK employers must conduct ‘right to work’ checks on every prospective employee prior to employment. These checks are designed to prevent illegal working. Failure to comply has serious consequences for employers who can face criminal liability and hefty civil penalties.

Employers who rigorously conduct these checks, in line with Home Office guidance, are protected by a statutory excuse if an individual is inadvertently employed illegally.

If an individual has limited leave to remain (where there is an expiry date on their permission to work in the UK), employers also have a duty to conduct follow up checks.

In normal circumstances, as part of the checks, employers must obtain documentary evidence (original versions) of an employee’s immigration status. The Home Office have a prescribed list of acceptable documents. Any documents provided would be checked and verified in the presence of the employee. Employers would then make and retain clear copies of any supplied documents and record the date of the check. However, the checking process has been temporarily adjusted to assist employers in light of the coronavirus pandemic.

From 30 March 2020, employers can ask individuals to send them scanned copies or photographs of original documentation for checking. Employers should then arrange a video call with the employee. During the call, the employee should be asked to hold up the original documents to the camera, so employers can check the validity of the documents against the digital copy they have received. Employers should record the date of the check and write "adjusted check undertaken on [insert date] due to COVID-19" on copies of documentation.

If an employee has immigration status under the EU Settlement Scheme or a Biometric Residence Card or Permit, employers are able to use an online service to conduct their checks during the video call. Employers can only use this service if the employee chooses to share this information.  If an employee cannot provide documents, employers can ask the Home Office to check an employee’s (or prospective employee’s) immigration status through the Employer Checking Service. If the employee has the right to work, the Home Office will send the employer a ‘Positive Verification Notice’ which they should keep as it provides a statutory excuse for six months from the date in the notice.

When the temporary measures end, employers should conduct retrospective checks on existing employees (who started work or required follow-up checks during the adjusted period) within 8 weeks in the ordinary way. Employers should note the following on copies of any documents reviewed during the backdated checks: "the individual's contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19". Employers should retain copies of both checks.

A properly completed check (as per the adjusted guidance or via the Home Office), followed up by a retrospective check will give employers statutory excuse. In such cases, no enforcement action is likely to be taken by the Home Office. The adjusted guidance ensures that, while ‘in person’ checks remain unfeasible due to COVID-19, employers can still protect their position.

Ross Hutchison is an Associate in the Employment, Pensions and Immigration team. If you have any questions regarding these temporary changes to ‘right to work’ checks, or any other immigration matters, please do not hesitate to contact Ross at ross.hutchison@weightmans.com or speak to your usual Weightmans advisor.

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