All employers in the UK are required to conduct right to work checks against proposed employees before the employment commences.  The right to work check is prescriptive and the correct combination of documents need to be checked.

As a result of the Covid-19 pandemic, the Home Office have issued updated guidance on right to work checks and this guidance is in place until 20 June 2021.

The following temporary changes have been made:

  1. Checks can be carried out over video calls.
  2. Job applicants and existing employees can send scanned documents or a photocopy of documents for checking using either email or a mobile App, as opposed to sending original documentation.
  3. Employers should use the Employer Checking Service (ECS) if a prospective or existing employee is not able to provide any of the documents acceptable to the Home Office.

Procedure which needs to be followed – the adjusted right to work checks

Until 20 June 2021, if employers are carrying out the temporary adjusted right to work check then they must:

  1. Ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile App
  2. Arrange a video call with the worker who should then be asked to hold up the original documentation to the camera and the employer needs to check the original documentation against the digital copy of the documents received. The employer is then required to record the date they made the check and mark it is “adjusted check undertaken on [date to be inserted] due to Covid-19”.
  3. If the worker has a current Biometric residence permit, Biometric residence card or has been issued with either Pre-settled or Settled Status under the EU Settlement Scheme or the Points Based System, then the employer can use the online right to work checking service whilst doing a video call. However, the worker must give the employer permission to view their details.

Ending of temporary adjustment

The above temporary adjustments to the right to work checks are scheduled to end on 20 June 2021.  From 21 June 2021, employers will be required to either:

  1. Check the applicants original documents; or
  2. Check the applicants right to work online, if the applicant has given their permission for this to be done.

Retrospective Checks

The Home Office have confirmed that employers do not need to carry out retrospective checks on individuals for whom they have made a temporary adjusted check between 30 March 2020 and 20 June 2021, inclusive. The Home Office have confirmed that employers will maintain a defence against a civil penalty if the check which they have undertaken during the above stated period was done in the prescribed manner or as set out in the Covid-19 adjusted checks guidance.

Job Applicants or existing workers who cannot show their documents

There can be situations where a job applicant or an existing worker cannot show their documents because, for example, they have an outstanding appeal before the Immigration Tribunal, a review application or a pending application with the Home Office. If the person has a right to work, then the Home Office Employer Checking Service will send the employer a “positive verification notice” and this will provide the employer with a statutory excuse for a period of 6 months from the date in the notice.

For advice on this or any other immigration matter, please do not hesitate to contact Immigration Partner, Sohan Sidhu, by email at [email protected] or by telephone on 01284 763333.