Back in March 2020, the Home Office introduced temporary measures to allow for employers to conduct Right to Work checks remotely as a result of the COVID-19 pandemic.
These measures were due to end on 31 August 2021, which would have resulted in the re-introduction of face-to-face right to work checks from 1 September 2021. On 26 August 2021, the Home Office announced that these measures will continue until 5 April 2022 (inclusive).
The surprise announcement follows a substantial amount of campaigning by various organisations and confederations in support of recruitment businesses, including our partners the REC and APSCo, who have long pushed for digital right to work checks to become the norm.
The Home Office confirmed the extension arose from positive feedback received regarding the ability to conduct checks remotely and further confirmed an intention to introduce in time, a new digital solution with enhanced security measures, including identity document validation technology.
Research from the Better Hiring Institute shows that at least 40,000 workers were successfully hired in the UK during the pandemic, by way of the temporary adjusted checks. Whilst this extension is a welcome development in the short-term, it comes at a time when sectors such as adult social care, construction and engineering and supply chains are facing unprecedented staff shortages. It remains to be seen how far the Home Office will go in making long-term changes to benefit employers.
The COVID-19 measures
Under the temporary measures, employers have been able to check a job applicant’s right to work in the UK without physically seeing the individual (or their ID documents) in person. From 30 March 2020, employers have been able to:
- ask workers and job applicants to submit a scanned copy or a photo of their original documents via email or using a mobile app; and
- arrange a video call with the worker to check their resemblance to the documents supplied; or
- use the online right to work checking service while doing a video call if the worker has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system.
Provided that employers carried out remote right to work checks in the prescribed manner and in accordance with the COVID-19 adjusted checks guidance, they will obtain a statutory defence against a civil penalty (known as a “statutory excuse”) in the event of an employee being found to be working illegally in the UK. Retrospective checks are not/will not be required for those who have had an adjusted check between 30 March 2020 and 5 April 2022.
Employers who fail to carry out the checks properly will potentially be exposed to civil penalties (up to £20,000 per illegal worker), criminal penalties (unlimited fines and up to five years in prison), naming and shaming, reputational damage and the loss of any sponsor licence.
If you would like advice on carrying out right to work checks or immigration advice and support more generally, please contact a member of the Business Immigration Team.
