In response to COVID-19, an adjusted right to work check process was put in place in March 2020 allowing employers to conduct checks over video calls with job applicants and existing workers, and by reference to scanned copies or photos of their right to work documents sent to them by email or a mobile app: a significant concession given that the normal requirements stipulate that the employer must receive and check the originals.
These temporary measures* will cease on June 20th 2021, and thereafter employers will revert to physical document checks in the presence of the individual, or by video link, as set out in legislation and guidance. Therefore, with effect from June 21st 2021 employers must either:
• Check the applicant’s original documents, or
• Conduct an online right to work check, if they have received a share code from a (prospective) employee eligible to use the service.
For employers who are concerned about this upcoming change the following approaches will reduce the need for face to face checks:
• If the individual is willing to send their original documents by post, it will still be possible to conduct a manual check via a live video link; measures to securely receive, review and return original documents must be in place.
• If the individual holds a biometric residence permit, biometric residence card or is an EEA national who has been granted settled status under the EU Settlement Scheme, the online right to work checking service can be used remotely.
Of course these options do not alleviate all concerns. Some individuals may understandably prefer not to post such valuable documents, and not all individuals are eligible for the online checking service (British nationals, for example, do not qualify).
Employers may continue to use the adjusted process until June 20th, but should develop an internal policy for conducting right to work checks, carefully balancing the COVID-19 risks and compliance with immigration legislation.
No retrospective checks for COVID-19 adjusted checks
Much to the relief of UK employers, the Home Office has recently confirmed that it will not require them to carry out retrospective checks on those who had a COVID-19 adjusted check between March 30th 2020 and June 20th 2021 (inclusive). Employers will maintain a defence against a civil penalty if the check undertaken during this period was done in the manner prescribed in the COVID-19 adjusted checks guidance.
*Home Office guidance on temporary measures can be found at https://www.gov.uk/guidance/coronavirus-covid-19-right-to-work-checks
Emma Collins is a solicitor in the Business Immigration team at DMH Stallard and can be contacted on 01293 558545 or by email to firstname.lastname@example.org