Coronavirus and Right to Work in the UK Checks

UPDATES

This page was firstly published on 6 April 2020 and the last update was 27 August 2021.

On 30 March 2020 the Home Office implemented adjusted procedures for conducting Right To Work in the UK checks in light of the covid-19 pandemic. Under the Home Office’s current guidance for Right to Work in the UK checks, it is possible to conduct a fully compliant initial or follow-up Right to Work in the UK checks without seeing the individual face to face and allows job applicants to send scanned copies of identity documents rather than providing originals.

Prior to this temporary change, Right to Work in the UK checks had to take place while the individual was physically present with the original documents in their possession.

While the appropriate arrangements will vary from business to business, the following general approach should ensure compliance while minimising the need for face-to-face right-to-work checks:

  • Online right-to-work checks should be used wherever possible (noting that the individual must be present at the time of the check, at least via live video link).
  • Adequate resources should be put in place to securely receive digital copies of documents via email or a mobile app.

The UK government provides a list of acceptable documents which would satisfy the right to work requirements which can be downloaded at the end of this post.

UPDATE 26 August 2021
The government announced on 26 August 2021 that the end date for the temporary adjusted checks has now been deferred to 5 April 2022. The following temporary changes were made on 30 March 2020 and now remain in place until 5 April 2022:

  • checks can be carried out over video calls
  • job applicants and existing workers can send scans or photos of their original documents via email or a mobile app, rather than sending originals
  • employers should use the Home Office Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents

The continuation of adjusted checks is helpful for employers and employees because a significant number of HR staff and other employees continue to work from home, and employees are reluctant to part with their valuable physical identity documents where these are required.

What is different about this extended deadline is that in the interim, the Home Office plans to develop a new digital solution to include those who cannot use the existing online RTW system. This will include British and Irish citizens. It is likely that if the solution is not in place by the 5 April 2022 deadline, it will be extended again.

A fully compliant RTW can be done in one of two ways, without face-to-face contact.

Remote RTW Check For Individuals Eligible To Use Online Right to Work in the UK checks Services

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.

For employees who are able to access the Home Office’s online Right to Work in the UK checks services, it is possible to conduct a compliant RTW while they are present via a video call. The employee must give their permission for an online Right to Work in the UK checks to be carried out. If the individual has physical documents, they can opt for a manual Right to Work in the UK checks rather than using the online service, however in practice this is relatively rare.

Individuals who have been issued with a biometric residence permit (BRP) or biometric residence card (BRC) number should access their online immigration record, which can be found on the government webpage “Prove your right to work to an employer”.

Those who have settled or pre-settled status under the EU Settlement Scheme, or who received an eVisa after using the UK Immigration ID app should access it on the government webpage “View and prove your immigration status”.

Irrespective of which online access point an individual uses, they will need to follow the prompts to create and provide a one-time use share code, either as an email generated through the GOV.UK website or by taking a note of the code and sharing it. The share code must be used within 30 days of its creation. Be aware that the Home Office will have a clear audit record of the time and date the code is used to carry out the Right to Work in the UK checks. To ensure cover against having to pay a civil penalty for illegal working, make sure the online check is carried out before the person actually starts work, or before their current immigration permission expires if it is a repeat check.

The employer’s link on the government webpage “View a job applicant’s right to work details” must be used to login with the code. Viewing the individual’s record via their access point is not sufficient.

Once logged in, the individual’s profile may be viewed, along with what employment they are allowed to undertake on their visa status. If the person has an outstanding immigration application (eg, to move from pre-settled status to settled status), the online system may only show the outstanding application rather than the expiry of the person’s existing immigration permission. If this happens, the person should contact the Home Office and ask for their record to be amended to show their existing immigration permission.

The photograph depicted needs to be checked, as well as any employment restrictions that are advised on their record. It is advisable to log in while the person is present via a live video call so that it is possible to confirm they are the person shown on their online profile, just as in a standard face-to-face RTW.

Ensure that a copy of the online check is kept. Taking a screenshot of the video call open concurrently with the online RTW screen showing the person’s details is suggested as best practice, but this is not essential. It may be saved as a hard or soft copy but it should be in an unalterable format, dated and clearly identifying the person taking the check so that it is clear they are an authorised and appropriate employee of the employing business, taking the check on or before the individual’s first day of employment, or, for a repeat check, before the expiry of the person’s existing immigration permission (in the usual way for a valid RTW).

Remote Right to Work in the UK checks For Everyone Else

For those who do not have access to the online Right to Work in the UK checks process, for example, British and Irish citizens, the RTW can be conducted if their original evidence of right to work is available, e.g., their current passport, and by then checking its validity, etc, in the usual way but via a video call. The same records must be retained, i.e., certified dated copies either in hard copy or soft copy.

The person conducting the check must see the original document to check it appears to be genuine and unaltered, and to verify the image on the document (if there is one) against the appearance of the person on the video call. This option may not be preferred or feasible given the logistical issues involved where one or more parties are working from home or where there is a reluctance to courier or drop off original documents for checking.

Adjusted Procedure During Covid-19

Following the Home Office announcement to extend the adjusted Right to Work in the UK checks procedure until 5 April 2022, employers can continue to carry out adjusted RTW checks for the time being in a way that takes into account the ongoing impacts of covid-19.

Under the adjusted procedure, employers should take the following steps:

  • ask the prospective or existing employee to provide a scan or photo of their Right to Work in the UK checks documents;
  • hold a video call with the person and ask them to hold up their original documents;
  • check the documents shown in the call against the scan/photo received (it is also suggested that these are checked against the physical appearance of the person on the call and that a screenshot of the video call and the person holding up their documents is taken); and
  • mark the copies with the printed name of the person conducting the check and the wording “adjusted check undertaken on [date] due to covid-19”.

If the person cannot show their documents, for example because they have an outstanding application with the Home Office, contact the Employer Checking Service and obtain a Positive Verification Notice (PVN). This will provide a statutory excuse for six months. After this time a further PVN will be required unless the worker is able to satisfy a fully compliant RTW or a RTW under the adjusted procedure in the interim.

The covid-19 adjusted procedure may not be chosen where it is operationally feasible to do so. This might be possible where employees who undertake RTWs have returned to the workplace and the individuals for whom a retrospective check is required either agree to courier their original documents to the workplace, or to complete a face-to-face check at the workplace.

Any individual employed between 30 March 2020 and 5 April 2022 will not be subject to a retrospective manual RTW check where the adjusted procedure was used. However, if it comes to light that an individual employed during the period when an adjusted RTW check was used does not in fact have the right to work, the Home Office will expect their employment to be ended.

Checks For Those Unable To Leave United Kingdom

The exceptional assurance process is an arrangement the Home Office has put in place for those who intend to leave the United Kingdom but are unable to do so before the expiry of their immigration permission due to factors relating to the pandemic.

In some cases, it will be preferable for any employees who are unable to depart the United Kingdom but who want to continue to be able to work to consider making an application for further leave to remain before their leave expires. Where exceptional assurance has been requested or successfully granted, it will provide short-term protection against any adverse action. If previous immigration conditions allowed an individual to work, study or rent, then they may continue to do so during the time the request for exceptional assurance is outstanding, and during the period of exceptional assurance once granted.

An individual will have to reapply for exceptional assurance where their circumstances have changed or they are unable to leave the United Kingdom by the date given.

A person who has exceptional assurance will be able to apply for permission to stay in the United Kingdom before it expires. They must meet the requirements for the route they wish to apply under and the route must be one that allows an in-country application to be made.

For those employees who have requested or have been granted exceptional assurance, it is suggested to contact the Employer Checking Service to request a Positive Verification Notice.

It is also suggested to copy and retain:

  • the Home Office’s covid-19 guidance for applicants, as at the date of the check; and
  • the correspondence between the applicant and the Home Office confirming submission of the request for exceptional assurance and its grant.

The employee should be asked to keep in contact regarding the progress of any outstanding request for exceptional assurance and should be followed up periodically, e.g. fortnightly; also, for further confirmation of their status ahead of the expiry date of the exceptional assurance once granted.

What If Someone Is Employed To Work Illegally?

Employing someone to work illegally will generally make an employer liable for a civil penalty and a fully compliant RTW is the only way to be sure of reducing the £20,000 penalty to £0. Should the Home Office deem that an employer knew or should reasonably have known that the individual was working illegally, then this would be dealt with as a criminal matter, which can attract an unlimited fine and up to five years imprisonment. It is therefore crucial to have robust systems in place for compliance.

The Home Office does have the option to reduce the penalty where there are mitigating factors but no fully compliant RTW. Usually, they would reduce the penalty by £5,000 for each mitigating factor from the below list of four accepted mitigating factors:

  • where the employer has self-reported the suspicion of illegal working;
  • has the employer conducted a partial RTW;
  • the employer has cooperated with the Home Office on the investigation; and/or
  • the employer has generally robust systems in place for the prevention of illegal working.

Where it is a first breach, it is possible to reduce the penalty to £0. However, if it is not a first breach, the penalty usually cannot be reduced to less than £5,000 per illegal worker. It cannot be guaranteed that the Home Office would extend its discretion to reduce the penalties for reasons beyond those listed.

Any civil or criminal sanctions imposed may also affect an employer’s sponsor licence. It is therefore very important to take all practical steps to ensure that all employees have the necessary right to work in the role for which they have been hired.

Other Important Points During Covid-19

Bear in mind that according to the Home Office’s current published guidance, only those documents on the Home Office’s right to work checklist are acceptable as evidence of right to work, even if using the adjusted procedure. The situation has been complicated by the introduction of the concessions for sponsored workers and those with exceptional assurance, and the Home Office has not issued any specific guidance to cover these people.

Examples of illegal working that may occur include:

  • employing a sponsored employee in a role other than the one they have been sponsored to carry out, unless they meet the requirements of the published concession for sponsored worker applicants (this could be an issue currently were trying to reallocate staff due to changed business needs during the pandemic);
  • allowing a student to work above the maximum number of hours a week they are allowed to work during term-time; or
  • allowing a student to work at all if it comes to light that they have dropped out of their studies.

Lastly, it will be important to be alive to the possibility of impersonation in the current circumstances, particularly if the copies of documents or image on the video call are not clear. Caution should be taken when carrying out Right To Work in the UK checks, as retrospective checks are not required for those employed while the adjusted checks are operational. However, where an individual is found not to have appropriate status to work, it will be necessary to take steps to terminate their employment.

Home Office Right to Work in the UK Checklist

Download the Checklist Now!

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Coronavirus and Right to Work in the UK Checks