Out-Law / Your Daily Need-To-Know

UK right to work check concessions end on 16 May

Out-Law News | 04 May 2021 | 12:59 pm |

Jo Hennessy tells HRNews about the return to traditional right to work checks from 17 May
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  • Transcript

    The Home Office has announced that the temporary adjustments to the process for checking individual rights to work in the UK will end on 16 May. Updated official guidance from the Home Office has been published making it clear that from 17 May employers must once again check individuals’ original documents, rather than scans or photographs of the originals. Checks must be performed 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 how the Home Secretary, Priti Patel, has been urged to delay the switch back by a number of industry bodies on the basis it will make life too difficult for employers having to make the checks given the pandemic restrictions will not have been fully eased. They quote Kate Shoesmith, deputy chief executive of the Recruitment and Employment Confederation, who has written to Priti Patel asking for any changes to be put back until at least 21 June when the last lockdown measures are lifted. People Management quotes a number of proponents of the temporary system who argue it has worked well and we should stick with it. May Tania Bowers, legal counsel and head of public policy at the Association of Professional Staffing Companies says returning to physical checks threatened to undo the ‘huge amount of time and effort that has gone into adapting the ‘right to work’ verification processes in a remote environment’. She says she will be addressing her concerns to the Home Office directly – one of many doing that. 

    Time will tell whether the government relents and so in the meantime employers are being advised to work on the assumption that full checks will be required 17 May. So, let’s get reaction to that. On the line is 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 we knew that was going to come to an end, eventually, we would get a lead in period for that to be notified, and the Home Office has now confirmed that that will come to an end on 16 May. So, as of 17 May employers will be required to conduct any right to work checks due from that date onwards under the traditional process. So that would be for those who can't use the online checking service, all British Nationals can't use the online service for example, then they will need to be checking the original physical document that the individual holds. Now they can either meet that person to do a face-to-face check of the document against their details etcetera, or they can have the original physical document in their possession and then do that check through a live video link. 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 in May before most people are back at work and then the general recommendation is still to be working remotely until we're into June. So, we have a number of clients raising concerns that their offices are closed, they're not going to be back for June, some of them may not even be back in June, this is maybe a more long term adjustment to how they work and that's 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 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 following the end of June 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 this is changing from 17 May, 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 coming in from 17 May. 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