End of COVID-19 adjustments to right to work checks delayed until 1 September 2021

23rd June 2021

The Home Office initially announced that the temporary adjusted right to work check measures in place due to COVID-19 would end on 16 May 2021. To coincide with the government’s intention to remove all legal limits on social contact no earlier than 21 June, the Home Office then announced that the return of standard right to work checks would be delayed until 21 June 2021.

Following the Prime Minister’s subsequent decision to delay the easing of lockdown restrictions until 19 July 2021, the Home Office has now announced their intention to delay the requirement on employers to obtain and check original right to work documents for employees and prospective employees until 1 September 2021. Employers are therefore permitted to continue completing their right to work checks remotely using scans or photocopies of identity documents until 31 August 2021.

What are the temporary adjustments?

The temporary changes, which have been in place since 30 March 2020, have allowed right to work checks to be carried out by employers remotely over video calls without a requirement to see physical documents. In line with government guidance to work from home where possible, this has permitted potential candidates and existing workers to send scanned or photocopied identity documents to their employer via email or by using a mobile app, in place of sending the original documents for the employer to physically review as is required under the standard checking process. This got around the inevitable logistical challenges that would have resulted from trying to conduct physical checks while social distancing and stay at home edits were in place.

How are they changing?

However, from 1 September 2021, employers will be required to revert to checking original identity documents or, if the individual is unable to provide documentation confirming their right to work, checking their status online using the Employer Checking Service. The individual must give consent for the online checks to be carried out and provide the employer with a unique share code to access their records.

From 1 September 2021, employers will be required to have the physical original documents when conducting right to work checks and must not rely on the inspection of documents via a video call or scanned copies in order for the check to be valid and provide a statutory excuse against a civil penalty for employing an individual who is prevented from working due to their immigration status. Where members of staff are still working remotely, this could mean asking them to send their original documents using a courier or recorded delivery service, to enable checks on the physical documents to be undertaken while the individual is on a video call.

By way of a reminder, a manual right to work check should comply with the following three steps in order to provide a statutory excuse:

• The applicant’s original documents should be requested;
• The validity of the documents should be checked in the applicant’s presence (in person or via a video call); and
• Copies of the documents should be made and retained, together with a record of the date on which the check was completed.

In order to be valid, checks for new recruits should be undertaken before their employment commences.

Will retrospective checks of physical documents be required?

At the time the temporary remote measures were brought into effect, employers were advised that they would be required to carry out follow-up right to work checks on any employees who had had a COVID-19 adjusted check, within eight weeks of the temporary measures ending. In what will be very welcome news to employers however, the Home Office has now confirmed that retrospective checks will not be required for individuals who had their right to work checks completed under the adjusted rules between 30 March 2020 and 31 August 2021.

Checks for EEA and Swiss nationals

Until the deadline for making applications under the EU Settlement Scheme has passed after 30 June 2021, it is essential that employers do not require those carrying EEA or Swiss passports or identity cards to demonstrate that they have been granted either settled or pre-settled status under the EU Settlement Scheme, albeit they can be invited to do so if they wish. From 1 July 2021 however, new EEA and Swiss recruits will be required to demonstrate either status under the EU Settlement Scheme or an alternative legal basis for working in the UK.

The Home Office has now also finally published its long awaited draft Code of Practice on Preventing Illegal Working, which sets out the prescribed checks that employers should undertake on EEA and Swiss employees and prospective employees to avoid a civil penalty in the event of illegal working from 1 July 2021. The draft Code, together with the Home Office issued ‘Employer right to work checks supporting guidance’, which was updated on 18 June 2021, provides information on the changes to the types of physical documentation, as well as digital evidence, which should be checked by employers from 1 July. More information on these changes can be found in our article on the draft Code, which will be available shortly on our Business Immigration Hub here.

The Home Office has already issued guidance confirming that there will be no obligation to request evidence of status under the EU Settlement Scheme from existing employees, and to do so is likely to be discriminatory unless it is part of a wider request for all employees to demonstrate their right to work.

Compliance Audits

It is anticipated that the Home Office will increase the number of compliance checks it carries out as more businesses return to the workplace following lockdown, and once the deadline for EEA and Swiss nationals applying to the EU Settlement Scheme passes on 30 June 2021. Civil penalties for the employment of illegal workers where proper right to work checks have not been completed include fines of up to £20,000, and unlimited fines and prison sentences of up to 5 years can be applied where there is knowledge or reasonable cause to believe that an individual is working without the legal right to do so. Now would therefore be a good time for employers to audit their right to work compliance and take appropriate action where appropriate right to work documents are not held on record.

The Walker Morris Business Immigration team is experienced in advising clients on conducting legally compliant right to work checks, carrying out right to work audits, and dealing with issues that are identified during audits in a manner which mitigates risk. For further information regarding any of these issues, please contact Shabana Muneer or another member of the Walker Morris Business Immigration Team.