Immigration Update: COVID-19 and Right to Work Checks

The Home Office has published guidance for employers carrying out right to work checks during the current coronavirus pandemic.

Although many businesses are currently not operating during the coronavirus pandemic, and many are having to furlough staff, certain sectors have seen a huge increase in the need for labour – for example, within the food and delivery sectors. Right to work checks will remain particularly relevant at this time, and businesses should note this updated guidance.

Checks continue to be necessary and it is an offence to knowingly employ anyone who does not have the right to work in the UK and carry out the work in question. However, to enable people to follow the Government’s advice to stay at home during the current pandemic, the new guidance introduces temporary changes to manual right to work checks. It confirms that, as of 30 March 2020:

• Employees/prospective employees are no longer required to send their original documents to the employer – instead, they must send a scanned copy via email or a mobile app.
• Employers can then carry out a right to work check over video conferencing, as opposed to face-to face.
• Where an employee or prospective employee is unable to provide any documents, the employer should continue to use the UKVI Employer Checking Service.

Due to coronavirus, some individuals may be unable to evidence their right to work, and so during this period employers must take extra care to ensure no-one is discriminated against as a job applicant or employee because they are unable to provide their documents.

The Home Office has summarised the temporary right to work check process as follows:

1. The employer should ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app
2. The employer should arrange a video call with the worker, and ask them to hold up the original documents to the camera so the employer can check them against the digital copy of the documents.
3. The employer should record the date they made the check and mark it as ‘adjusted check undertaken on [insert date] due to COVID-19’.
4. If the worker has a current Biometric Residence Permit, Biometric Residence Card or status under the EU Settlement Scheme, the employer can use the online right to work checking service while doing a video call. To do this the worker must give the employer permission to view their details.

The Home Office has made clear that these arrangements are temporary and do not provide a statutory defence against a civil penalty for the duration of the individual’s employment. Once the coronavirus measures end (the Home Office will confirm when this is), employers must carry out retrospective right to work checks on existing employees who were:

• employed from the point when these measures were being introduced (30 March 2020) and where the temporary measures were used, or who
• require a follow-up right to work check from 30 March 2020 and where the temporary measures were used.

The retrospective check must be carried out within 8 weeks of the COVID-19 measures ending. This retrospective check should contain the wording ‘the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19’. Both the initial and the retrospective check must be retained on the employee’s file.

If, during a retrospective check, an employer finds out that the employee does not have the right to carry out the work in question, they must end their employment. Additionally, the Home Office has made clear that it will not take any enforcement action against those who carry out the right to work checks correctly, as set out above.

The Home Office will inform employers when these measures will end, so businesses should ensure they are keeping up-to-date with the current guidance.

For further advice on right to work checks and this updated guidance, please contact an immigration specialist.

For more information on the article above please contact Kirsty Cooke, Laura Wonnacott and Ellen Parker.