Right to work checks update

Extension of adjusted virtual right to work checks

Since 30 March 2020, temporary COVID-19 adjusted measures have been in place for employers in relation to carrying out right to work checks. During this period employers have been permitted to carry out right to work checks over video calls, rather than in person, and they have been able to check scanned copies of documents, rather than originals.

The Home Office had previously said this COVID-19 concession would end on 1 September 2021. However, the Home Office has recently announced that the COVID-19 adjustments will remain until 5 April 2022 and until then employers may continue to undertake virtual right to work checks.

Employers will not need to carry out retrospective checks where COVID-19 adjusted checks were carried out between 30 March 2020 and 5 April 2022 (inclusive).

Up to and including 5 April 2022, employers carrying out a temporary adjusted check must:

• Ask the individual to submit a scanned copy or a photo of their original documents via email or using a mobile app
• Arrange a video call with the individual – ask them to hold up the original documents to the camera and check the documents 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”

Alternatively, if the individual is a non-British national and has a current Biometric Residence Permit or Biometric Residence Card, or has been granted status under the EU Settlement Scheme or the points-based immigration system, employers can use the Home Office online right to work checking service while doing a video call with the individual, in which case the individual must give the employer permission to view their details.

Right to work checks must be undertaken before the individual’s employment commences and, if the individual has time limited leave, a further check must be undertaken shorty before the expiry of their leave.

Unfortunately, if employers do not carry out the right to work check correctly they will not have a defence against a civil penalty of up to £20,000 if the individual is later found to be working illegally. Further, if the employer is registered with the Home Office as a sponsor, one of the sponsor duties is to ensure that right to work checks are undertaken correctly in relation to all employees and the Home Office could therefore take action if checks are not being undertaken correctly.

The latest guidance from the Home Office on right to work checks is available here.

Possible future changes to the Home Office employer online checking service

Helpfully, the Home Office is also looking into specialist technology to support a system of digital right to work checks in the future. Their intention is to extend the use of the Home Office’s employer online checking service to include UK and Irish citizens. At the moment employers can only use the Home Office’s online checking service in limited circumstances, such as where the individual has status under the EU Settlement Scheme or has a Biometric Residence Permit. Expanding this would enable checks to continue to be conducted remotely but with enhanced security.