'Ongoing challenges’ with UK right to work checks until 1 September

Out-Law News | 29 Jun 2021 | 9:44 am |

Jo Hennessy tells HRNews about safeguarding the statutory excuse for illegal working
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  • Transcript

    In welcome news for employers, the Home Office has announced that changes to right to work checks put in place during the pandemic will now be extended to 1 September. It’s the second time the reintroduction of in-person checks has been pushed back. In-person checks were initially due to be brought back on 17 May, but after lobbying from business groups that deadline was pushed back to 21 June, in line with when the government had hoped to end the last of the lockdown restrictions in England. The government’s current guidance is to continue to work from home where possible, and that will be the state of affairs until at least 19 July. This latest extension to 1 September recognises that many employers don’t anticipate returning to the office until Autumn 2021, even if the Government is able to lift the remaining restrictions, as planned, on 19 July.

    The Home Office has updated its official guidance making it clear that from 1 September employers must once again check individuals’ original documents, rather than scans or photographs of the originals. Checks have to be carried out in the physical presence of the individual, or via a live video link while the original documents are in the possession of the employer. 

    Personnel Today reports on this and quotes Neil Carberry, chief executive of the Recruitment and Employment Confederation who says: ‘we’re pleased government has listened, and we look forward to working with the Home Office on the next logical step – a permanent digital system.’ People Management also refers to that, quoting a statement made to City-AM by a Home Office spokesperson who says the Home Office is ‘reviewing whether there are changes we can make to the right to work scheme to increase the digital checking aspects, including through the use of specialist technologies’. In the meantime, employers should continue with the temporary arrangements.

    So, let’s get some reaction to this news. Earlier I spoke to immigration specialist, Jo Hennessy. I started by asking Jo for the background to this:

    Jo Hennessy: “So we have had, during the COVID pandemic, adjusted right to work checks permitted by the Home Office. So, to recognise the fact that most employers have been working remotely and their workplaces are closed, and to reduce the risk of face to face contact, the Home Office has allowed right to work checks in recent months to be carried out remotely, so with employers checking soft copies of documents and then doing that via a video link or, for certain people who are eligible, they can use the online checking service. Now the positive that's come out of the announcement is that we had expected, and Home Office had indicated, that when the adjusted process came to an end employers would have to go back and do retrospective checks against everybody who was subject to right to work checks since the 30th of March 2020. They're not asking employers to do that, which is definitely welcomed by them because, depending on their volumes of recruitment, that could have been a huge process. But what is a concern for many employers is the fact that this is coming to an end before most people are back at work and then the general recommendation is still to be working remotely so we have a number of clients raising concerns that their offices are closed and that causing practical issues about how do we complete these right to work checks in a compliant way. So, if they can't meet these candidates, or existing employees, in person to do those checks it will require employers to look at alternatives such as having original passports, for example, posted or couriered to the employer doing the check and then those being checked to a live video link which, understandably, many individuals won't be comfortable putting documents of that nature in the post in case they go missing.”

    Joe Glavina: “What’s the problem with having documents couriered and then checked in person?”

    Jo Hennessy: “Yes, well it has always been permitted to do checks in that way. So, to have the original document delivered to the employer conducting the check and they do that through live video link. It is not really the norm, and certainly in my experience, individuals are generally very reluctant to have those kinds of documents posted, as I say, in case they go missing because of the sensitive information that they contain. There are also issues at the moment in terms of a lot of the people doing the checks will be working from home working remotely and they don't necessarily want to share their home addresses to have documents sent to them so you need to think about the logistics of who's arranging that , and who's paying for that as well because if there's a large scale recruitment exercise that could add up quite quickly, if we're using couriers. Also, when doing those checks the employer is required to make a copy of those documents and a record of having completed the check. Now a large number of people will not be set up with printing and scanning facilities at home, for example, to do that, so, again, it creates some logistical challenges of how do they complete and record a compliant check when they're not in the workplace and able to do that.”

    Joe Glavina: “The adjusted process was brought in because of the pandemic and it has been a completely new experience for employers. Do you think mistakes will have been made and, if they have, what will the Home Office’s attitude to them be?”

    Jo Hennessy: “Yes, well some employers will have continued with the original standard process for checks throughout the COVID period and not gone with the adjusted process if their work enabled that to happen. There is certainly the possibility that people have made mistakes and the reality is, if you haven't done a check properly, or recorded it in the correct way or done at the right time, for example, whether that's under the adjusted checks or the original process, you don't have a statutory excuse to illegal working and you can't retrospectively secure that. So, in that scenario, if you do a repeat check, you can get comfort that that person has the right to work and everything appears to be in order, but you wouldn't secure that defence. I think the crucial thing to note is that you only need a statutory excuse if the individual actually as an illegal worker if they don't have the right to work in the UK. You don't have a liability just for not completing a compliant check. Obviously, if that's on a larger scale, that you don't have compliant practices and you're not on top of this, then that could present problems, for example, if you're a licenced sponsor and you have that higher level of trust placed in you by the Home Office, but you will not have a liability, as such, just for not having followed the process to the letter. But you do need to be careful if there's anybody in that group that potentially doesn't have the right to work, you could have been provided with fraudulent documents, slightly higher risk of not identifying that where you're looking at soft copies as opposed to regionals, and with European nationals there's generally a bit more risk around them as well because we're in that window where European nationals have until the end of June this year to apply under the EU Settlement Scheme to cement their status to remain in the UK if they were in here in 2020 and there is likely to be a process of reviewing that to make sure everybody's done that, everybody retains those rights. So, Europeans who have historically been very low risk groups because of their rights of free movement, the risk associated with them could change going forward and that’s just an added concern if you don't have compliant checks against people throughout this period.”

    Joe Glavina: “Final question Jo. Any advice to for HR in terms of getting the message out to the people doing the checks?”

    Jo Hennessy: “I think generally, it's important that employers make sure that they're aware of what their current applicable requirements are and that they're sticking to those and it is a piece that's subject to change in relation to Europeans but, more generally, the Home Office could refine these requirements so it's important to keep on top of that, make sure that your teams know these are the new requirements. Make sure they are appropriately trained on those requirements and that you've got good internal checklists and guidance documents to keep them right on how to do that and have a compliant check. As I say, it's a very prescribed process that you want to go through and check all the boxes to make sure you've checked everything and recorded it properly and if you do part of that wrong that's where you can fall foul of the process and not have that crucial statutory excuse. So, making sure they're well informed is really important.”

    Jo made the point about keeping on top of any refinements to the rules. They would appear as an update to the Home Office guidance which is on the government’s website. We have put a link to that in the transcript of this programme.

    LINKS
    - Link to Home Office guidance on right to work checks