Out-Law News | 22 Apr 2021 | 2:19 pm | 3 min. read
Temporary adjustments to the process for checking individual rights to work in the UK will end on 16 May 2021, the Home Office has announced.
From 17 May, employers must once again check individuals’ original documents, rather than scans or photographs of the originals, or use the Home Office’s online right to work check tool. 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.
The Home Office has, however, confirmed that employers will not be required to carry out full right to work checks retrospectively where a Covid-19 adjusted check was carried out while the concessions were in force, between 30 March 2020 and 16 May 2021. Where the worker’s right to work was time-limited, additional checks required after 17 May must be carried out under the usual rules.
It is really vital that employers are comfortable that they have done all required checks during this time in full compliance with either the standard prescribed requirements or the Covid-19 adjusted checks, such that they have a statutory excuse to illegal working which they can rely upon if needs be
Immigration law expert Joanne Hennessy of Pinsent Masons, the law firm behind Out-Law, said: “The speed with which the adjusted checks are being brought to an end is slightly surprising given many employers will still not have returned to full office working by 17 May”.
“Unless individuals are eligible, and willing, to use the online checking service, from 17 May employers will have to secure their original documents and either check them in their physical presence or via live video link. This will be the case for all British nationals, for example, who do not qualify for the online service. New arrivals to the UK may also be working remotely whilst self-isolating under Covid-19 requirements, making in-person checks impossible. Employees are, understandably, often nervous about sending original documents of this nature to enable checks via video link,” she said.
“Employers will need to carefully consider how they will approach this, whilst balancing the Covid-19 risks and ensuring the individual is comfortable with the process. With many having moved to longer-term remote working arrangements this could be particularly challenging, as understandably many doing checks will not want to disclose personal addresses for delivery of documents where that is an option,” she said.
Introduced in response to the pandemic, the Covid-19 right to work check adjustments provide employers with a defence against a civil penalty where checks are performed based on scanned copies or photos of original documents. Checks can be carried out over video link, with the original documents in the possession of the individual. Alternatively, the employer may use the Home Office’s right to work check tool, with the permission of the individual, while in contact with them over video link.
Employers may continue to use the adjusted process until 16 May, even where the individual’s employment begins on or after 17 May, the government said. However, it has advised employers in this position to carry out standard checks where possible, in order to “ensure the security and integrity” of their right to work checks.
The Home Office’s online right to work checking service is available in respect of individuals who hold a biometric residence permit or residence card, or who has been granted UK immigration status under the EU settlement scheme or points-based immigration system. The service can only be used with the permission of the individual, and employers are not permitted to discriminate against applicants who refuse to allow access to their records.
Businesses which employ individuals that they knew, or had reasonable cause to believe, did not have the right to work in the UK face civil and criminal penalties.
Joanne Hennessy said that businesses would welcome the announcement on retrospective checks, as initial expectations were that these would have to be performed on all workers who had only been subject to a Covid-19 adjusted check.
“However, in light of this, it is really vital that employers are comfortable that they have done all required checks during this time in full compliance with either the standard prescribed requirements or the Covid-19 adjusted checks, such that they have a statutory excuse to illegal working which they can rely upon if needs be,” she said.
“This is particularly important in the context of EEA nationals, who have limited time remaining to cement their status in the UK under the EU Settlement Scheme and with ongoing uncertainty as to the extent to which employers will be required to undertake additional checks against them from July 2021,” she said.
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