Home Office Updates Right to Work Check Guidance
The Home Office just updated its guidance on Coronavirus (COVID-19): the right to work check last week. It confirms that the temporary adjustments made on 30 March 2020 catering for COVID distance working arrangements end on 16 May 2021. From 17 May 2021, employers must either check their employees’ original documents or check employees’ right to work status online.
It is important for all employers, especially Home Office registered sponsors to follow guidance on the right to work checks. They must comply with the law. Under section 15 of the Immigration, Asylum and Nationality Act, an employer could have liability for a civil penalty. This applies if they employ someone without the right to carry out the work in question in the UK. It is the employer’s duty to prevent illegal working in the UK by those subject to immigration control. Failing to do so means a financial penalty and, in some cases, prosecution.
COVID-19 temporary adjustments
Between 30 March 2020 and 16 May 2021, you can conduct a right to work check on physical documents by checking scanned documents. You can check these against the original documents and the rightful holder via a video call.
From 17 May 2021, employers must follow the normal physical document check procedures and will not be able to do so via a video call remotely.
The Government also confirms that employers do not need to carry out some retrospective checks. This applies to those who did a COVID-19 adjusted video check between 30 March 2020 and 16 May 2021 (inclusive). Of course, employers must correctly undertake right-to-work checks during this period as set out in the COVID-19 adjusted guidance.
How do I conduct a right to work check?
Companies must perform a right to work check before employing a person and ensure they are legally allowed to work for you. There are two ways of conducting a right to work check as outlined in the Home Office’s guidance:
Conducting a manual right to work check
There are three steps to conduct a manual right to work check:
- One: Obtain original documents from the Home Office’s list of acceptable documents.
- Two: Check the documents are genuine, anyone presenting them is the rightful document holder and allowed to do the type of work you are offering.
- Three: Copy each document and retain the copies securely. You must record the date the check was made.
Employers are recommended to use the Home Office’s ‘right to work checklist’ to ensure they correctly carried out the above steps.
Conducting an online right to work check
Are you an employer with BRP, BRC or status under the EU Settlement Scheme? Or do you have BNO visa or Frontier Worker Permit? If so, you may conduct an online right to work check.
First, the employee or prospective employee will need to use the Home Office online right to work checking service to provide a ‘share code’ generated by the service.
Second, employers must use the ‘view a job applicant’s right to work details’ page to complete the online right to work check.
Third, employers must retain a copy of the checking result provided by the online right to work check.
When there is a time limit for individuals’ right to work, employers should double check employees’ document expiry. They must also repeat the right to work check after renewing candidate’s documents.
EEA and Swiss nationals
Right to work checks for EEA nationals remain the same until 30 June 2021. Until then, EEA nationals can keep using their passport or national identity card to prove their right to work here.
Employers are therefore in a difficult position. EEA and Swiss nationals arriving in the UK from 1 January 2021 cannot now enjoy the free movement right. Therefore, they are required to have the right immigration status in order to take employment in the UK. At the same time, their passport or national identity card won’t prove UK right to work sufficiently.
From 1 July 2021, checks will change. This means all EEA nationals must prove their right to work check through evidence of their immigration status. For example, you can prove your right to work via your status under the EU Settlement Scheme or the points-based system.
It is not mandatory for employers to make retrospective checks on EEA nationals employed on or before 30 June 2021. If employers choose to carry out retrospective checks, ensure the checks are carried out in a non-discriminatory manner.
How can we help?
Do you need legal assistance on your right to work checks. Or, maybe you wish to know more about your responsibilities under UK immigration laws as an employer or employee? If so, please contact Taylor Hampton’s immigration solicitors today on 020 7427 5972 or submit an enquiry here.