The Home Office have confirmed that the temporary process for Right to Work checks which was put in place during the coronavirus pandemic will not end on 16 May 2021 as previously indicated by the Home Office, and instead will now end on 20 June 2021.
Perhaps in an effort to show the public that we are now seeing light at the end of the tunnel, the UK government had announced last month that the amended right to work checks process will no longer apply on 17 May 2021. Employers had voiced their concerns in recent weeks that these relaxations to the temporary measures may be premature, particularly with many employers not being able to return to working in office full-time by 17 May 2021 due to the varying degrees of lockdown measures being lifted across the four nations in the UK.
This original deadline has now been postponed and will no doubt be welcome news with the UK Government now confirming that the usual right to work checks will be in force from 21 June 2021.
Employers will be permitted to use the adjusted right to work checks process, which took effect from 30 March 2020 until 20 June 2021. As per our previous blog – Covid-19: New measures introduced for Right to Work checks – the temporary right to work measures provided employers with a defence against a civil penalty, provided the right to work checks were carried out correctly and in line with the temporary right to work guidance. Employers were able to undertake the right to work checks via video calls as opposed to the requirement of doing so in the presence of the prospective employee or existing worker. Up until the new deadline, employers will be permitted to accept scanned documents or photographs of documents from prospective employees and existing workers using email or a mobile app, instead of requiring original documents to be sent to them.
Once the prospective employee or existing worker sends a scanned copy or a photo of their original documents via email or using a mobile app, the employer should arrange a video call with the prospective employee or existing worker. The employer, during this video call, should ask the prospective employee or existing worker to hold up their original documents to the camera and check this against the digital copy of the documents sent to the employer prior to the video call.
Employers have always been expected to record the date right to work checks were made, however under the temporary measures, employers must mark the file copy of the check made with “adjusted check undertaken on [insert date] due to COVID-19”. This is applicable up until 20 June 2021.
Return of “Usual” right to work checks
From 21 June 2021, employers will be expected to check the prospective employee or existing worker’s original documents, or check the prospective employee or existing worker’s right to work online, if the prospective employee or existing worker has provided you with permission to viewing their details.
The right to work online service is available to employers where their prospective employee or existing worker has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme. As detailed above, it is important that employers obtain permission from the applicant prior to viewing their details.
For those prospective employees or existing workers who are ineligible – or unwilling – to use the online right to work service, from 21 June 2021, employers will need to check the prospective employee or existing worker’s original documents with the applicant there in person or via live video link – however this may pose practical issues as individuals may be hesitant to send original documents to employers before any video link meeting and employers may be reluctant to meet prospective employees or existing workers in person; particularly new arrivals who may be required to self-isolate for a period of time.
One welcome change to the adjusted temporary right to work measures is that employers do not need to carry out retrospective checks on those who had COVID-19 adjusted checks between 30 March 2020 and 20 June 2021 (inclusive). Previously, employers were expected to carry out retrospective checks within 8 weeks of the Covid-19 measures ending however the UK government have confirmed these checks will not apply and it is hoped that this will support businesses during this difficult time.
We continue to live in unprecedented times and whilst the normality of returning to the usual right to work checks will be reassuring, there continues to be challenges for employers. Employers should take extra care to ensure that no one is discriminated against as a job applicant or employee because they are unable to show you their documents or provide permission to view their details online.
Caution should therefore be exercised when undertaking the checks and employers should familiarise themselves with the adjusted temporary measures in place until 20 June and the return to the usual right to work checks after that to ensure that they avoid civil penalties or worse.
Insight from Gurjit Pall, specialist Immigration Solicitor. If your organisation has a query about this or indeed any other immigration law issue, please contact Gurjit on 0131 225 8705 or email gpall@thorntons-law.co.uk.
