The temporary measures introduced from 30 March last year have meant that instead of having to have sight of original right to work documents, employers have been able to:
- ask the candidate or employee to submit a scanned copy or a photo of their original documents via email or using a mobile app (rather than their viewing the physical originals); and
- on a video call with the candidate or employee, ask them to hold up the original documents to the camera and check them against the digital copy of the documents, record the date on which the check was done and mark it as “Adjusted check undertaken on [date] due to COVID-19”.
When the Home Office announced in April that the temporary measures would end on 16 May, there was widespread concern amongst employers, given that many organisations do not expect to return to the office until at least 21 June, the earliest likely date for withdrawal of the Government’s “WFH if you can” advice. The Home Office has said that the extension is aligned with the easing of lockdown restrictions and social distancing measures, as set out in the government’s roadmap for England and the devolved administrations.
Therefore, from five weeks’ time, 21 June onwards, employers must do one of the following to complete a valid right to work check:
- have sight of and check the individual’s original documents (e. as required before 30 March 2020); or
- check the individual’s right to work online (if they have provided their share code).
Employers will not be required to conduct retrospective checks on those individuals who were or are subject to adjusted right to work checks between 30 March 2020 and 20 June May 2021 (when the temporary measures were originally introduced, the Home Office had indicated that such checks would be needed). As such, employers will maintain a defence against a civil penalty if the right to work checks they carried out in that period were done in line with the guidance in place at the time of the checks.
With 21 June fast approaching, employers are urged to re-familiarise themselves with the appropriate pre-COVID right to work check processes to avoid potential civil penalties.
Whether employers will in fact be able to carry out right to work checks on original documents from 21 June will depend on their organisations’ own return to work plans. Many have expressed their concerns about remaining compliant after that date given their plans to work largely or entirely remotely for the foreseeable future.
If a candidate or employee has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme, the employer can use the online right to work checking service allowing it to confirm the employee’s status online and through a video call without seeing original documentation. However, this service cannot be used for those with UK passports or anyone with a visa or status endorsed in their passport (when the employer would still be required to see the original document).
This clearly highlights the need for the Home Office to provide a longer term practical solution for all categories of employee, given the likely increase in remote working and virtual offices, even once Covid-19 social distancing measures have been lifted entirely. The assumptions about workplaces on which the old regime based on physical checking was based are simply no longer safe post pandemic.
Employers may also find our commentary on right to work checks for EEA/Swiss employees during the grace period prior to 1 July 2021 helpful.
If you have any questions relating to right to work checks or other immigration matters, please contact your usual Squire Patton Boggs business immigration team member or Annabel Mace, partner and Head of UK Immigration.