The temporary concession in respect of right to work checks has now been extended to 20 June 2021.
In our recent article, we explained that the Home Office introduced temporary measures on 30 March 2020 to make it easier for employers to carry out right to work checks during the COVID-19 pandemic. That concession was due to end on 17 May 2021, but the Home Office has today announced an extension to the concession until 20 June 2021, to align with the easing of lockdown restrictions and social distancing measures. From 21 June 2021, employers will have to revert to carrying out “in person” right to work checks (see below).
Following the Home Office’s previous announcement that the concession would be coming to an end, various industry bodies began to lobby for the concession to be made permanent, which would allow employers to always check a job applicant’s right to work in the UK without physically seeing the individual (or their ID documents) in person. In the modern world of work, and particularly since the onset of COVID-19, many employees now work from home permanently and rarely (if ever) travel into their employer’s office. Indeed, many companies have a physical office in one city but employ individuals all over the UK, meaning that physically checking a job applicant’s ID in person is impractical.
As such whilst the extension is a welcome development in the short term, the Home Office’s extension of the concession to 20 June 2021, therefore, provides little practical benefit to employers in the long term.
In addition, there are strong arguments that it would have made sense for the Home Office to have extended the concession until 30 June 2021, to coincide with the deadline for EU nationals to apply for settled status and the inevitable changes to right to work checks which will be required from 1 July 2021.
It would at least appear that the Home Office has listened to the concerns which have been raised about the practical difficulties of conducting right to work checks in person at the present time, but whether the Home Office will change its approach and allow virtual right to work checks to be carried out on a permanent basis remains to be seen.
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.
Reverting to “in person” checks
From 21 June 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.
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.
