UK Government Extends Adjusted Right to Work Checks

The changes made to the requirement for employers to carry out a physical right to work check on employees have been extended until at least 5 April 2022. The changes introduced from 30 March 2020, as a result of the Covid-19 pandemic, suspended the requirement for employers to carry out physical right to work checks on employees, enabling employers to rely on an adjusted process to satisfy their legal obligations and protect themselves against sanctions.

The employer’s legal obligations

The Immigration, Asylum and Nationality Act 2006 and the Immigration Act 2014 introduced a civil penalty for any employer employing someone without the right to work and a criminal offence where an individual knew or has reasonable cause to believe that the employee did not have the right to work.

Carrying out a right to work check provides an employer with a statutory excuse in relation to any civil sanction.

The right to work check and the change introduced 

Pre-Covid-19 the default right to work check involved the following three steps:

  1. Obtain: The employer should obtain the employees original documents, as prescribed in the Home Office guidance;
  2. Check: The employer should check that the documents relate to the individual and are original, unaltered, and valid, in the presence of the employee; and
  3. Copy: The employer should make copies of the documents and keep a record of the date of the check and any follow up checks required.

A change was made to requirement to check the validity of the employee’s documentation in the physical presence of the employee as a result of the Covid-19 pandemic, and an adjusted process introduced allowing employers to conduct a right to work check via video call.

Under the adjusted process the employer must now follow the following three steps:

  1. Obtain: The employer should obtain scanned copies or photos of the original documents from the employee;
  2. Arrange: The employer should arrange a video call with the individual, ask that individual to hold up original documents to the camera so that they can be checked against the digital copies obtained.
  3. Record: The employer should record the date they conducted the check in a note with the following wording: “Adjusted check undertaken on [DATE] due to Covid-19”, on each document obtained.

Employers are also permitted to use the online right to work checking service during the video call for employees with a Biometric Residence Permit, Biometric Residence Card, or status under the EU Settlement Scheme.

Employer Checking Service

Home Office also introduced an Employer Checking Service where the individual does not have the relevant right to work documentation. Employers using this service have a statutory excuse for six months from the date of the notice issued by the service.

What it means for your organisation

The extension of the adjusted right to work checks until at least 5 April 2022 brings welcome clarity and a practical solution to the challenge of arranging face to face checks. Many employers have highlighted the potential harm ending the adjusted process would have caused to the economic recovery and attempts to address widespread vacancies in many sectors.

A permanent digital solution is promised, which would be a welcome development for employers, but until that is completed it is likely that further extensions to the adjusted right to work check process are likely.

If you have any questions regarding this issue or any related immigration issues, the Geldards Business Immigration team are available to assist you with any questions you may have.

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