Right to work checks - Covid flexibility due to end on 16 May
This week the government updated its guidance on coronavirus (COVID-19): right to work checks.
During the pandemic, organisations could check that their staff had a legal right to work in the UK without having to see original documents or meet them face to face. However, these temporary adjustments are ending, and from Monday 17 May 2021 you must either:
If you're checking original documents, you'll need to do this in the presence of the individual or, if you're still working remotely (or they are newly arrived to the UK and have to quarantine), via a live video link while the original documents are still in your possession.
This will be your only option for British nationals who don't qualify for the online service.
The Home Office’s online right to work checking service is available for individuals who hold a biometric residence permit or residence card, or who have been granted UK immigration status under the EU settlement scheme or points-based immigration system. You can only use this service if the individual agrees and provides you with their share code. If they refuse, you can't discriminate against them by, for example, withdrawing their job offer etc. Instead, you will have to check their original documents.
Does this mean that we have to re-check the documents of anyone we recruited during the pandemic?
No. You don't need to carry out retrospective checks on anyone who had a Covid-19 adjusted check between 30 March 2020 and 16 May 2021 (inclusive). This reflects the length of time the adjusted checks have been in place.
If the Home Office discovers that you've employed an illegal worker, you'll have a defence (and won't be fined) provided the check you carried out during this period was done in the prescribed manner or as set out in the Covid-19 adjusted checks guidance which required you to:
- ask the worker 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 – and ask them to hold up the original documents to the camera and check them against the digital copy of the documents, record the date you made the check and mark it as 'adjusted check undertaken on [insert date] due to COVID-19'.
Can we rely on the temporary right to work rules if we undertake the checks before 17 May even if staff are due to start later than than date?
You might be able to. However, the guidance doesn't deal specifically with this point and we suggest that you err on the side of caution and follow the original rules, not least because if you get it wrong you may have to pay a civil penalty of up to £20,000 if you employ someone who has no right to work here.
What about right to work checks for EU citizens?
These rules apply to all UK employers and those they want to employ.
Until 30 June 2021 EU job applicants can prove their right to work in the following ways:
- EU, EEA or Swiss citizens can use their passport or national identity card;
- non-EU/EEA or Swiss citizen family members can use an immigration status document: and
- EU/EEA and Swiss citizens and their family members can use the online right to work checking service
You can't insist that they use the online service or discriminate against those who wish to use their passport or national identity card.
However, if you engage any EU citizen from 1 July, they will need to demonstrate that they have settled or pre-settled status (or have applied for it) or, if they aren't eligible for the scheme (for example, because they only started living in the UK after 31 December 2020) they have a valid visa under the points-based system.
Need help?
Our specialist employment and immigration lawyers Sybille Steiner and Padma Tadi can help you put in place an internal policy for conducting right to work checks from 17 May.
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