On 30 March 2020, the Home Office introduced temporary measures to make it easier for employers to carry out right to work checks during the COVID-19 pandemic. The Home Office announced this week that this concession is coming to an end from 17 May 2021.
The Covid concession
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 accordance with the COVID-19 adjusted checks guidance, they would have a 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.
However, the Home Office right to work guidance has now been updated to confirm that the temporary adjustments to right to work checks due to COVID-19 are ending on 16 May 2021.
Reverting to “in person” checks
From 17 May 2021, employers must revert back to the traditional method of carrying out right to work checks by:
- checking the worker or job applicant’s original documents (not a copy) in the presence of the individual; or
- checking the applicant’s right to work online, if they have provided their share code; or
- using the Employer Checking Service
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.
The impact for organisations
It is a pity that the Home Office is now requiring right to work checks to be conducted in person again; this seems a lost opportunity to modernise the right to work checking requirements.
In addition, at the current time, the requirement to check documents in the presence of the individual is difficult to reconcile with the Government’s current stance that everyone who can work from home must continue to do so.
The one saving grace, however, is that employers will not be required to conduct retrospective ‘in-person’ checks on those employees who had a COVID-19 adjusted check between 30 March 2020 and 16 May 2021 inclusive. Previously the Home Office had indicated that retrospective checks would be required, which would have added to the administrative burden for employers at a time when they are already grappling with the practicalities of bringing their employees back to work after lockdown.
From 17 May 2021, employers will need to make sure that they are carrying out full right to work checks in line with the statutory guidance to avoid the risk of illegal working.
If you would like advice on carrying out right to work checks, particularly post-Brexit, or help with making sure you are compliant with your immigration law obligations more generally, please get in touch with a member of the Business Immigration Team.
