• Nkolika Oraka

The Temporary Adjustments to Right to Work Checks are Coming to An End

Updated: May 12, 2021

In March 2020, as the coronavirus pandemic took hold of the UK and the first lockdown started, the government announced that temporary changes would be made to the way that employers carried out Right to Work checks.

The changes began on 30th March 2020 and would remain in place till further notice.

They were:

  • checks could be carried out over video calls;

  • job applicants and existing workers could send scanned documents or a photo of documents for checks using email or a mobile app, rather than the originals;

  • employers were instructed to use the Employer Checking Service if a prospective or existing employee could not provide any of the accepted documents.

Checking an individual’s right to work using the temporary measures

An employer carrying out a temporary adjusted check must currently:

  • ask the worker 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 worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents, record the date the check was made and mark it as “adjusted check undertaken on [insert date] due to COVID-19”.

  • If the worker 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, the employer can use the online Right to Work checking service while they are on a video call – although the applicant must give the employer permission to view their details.

The end of temporary adjustments

As part of the lifting of restrictions associated with the third lockdown, the government originally advised that the temporary adjustments to Right to Work checks were coming to an end on 16th May 2021. However, the Home Office has now said “After consulting with the sector extensively, we have been informed that the majority of employers will not be in a position to return fully to the office by 17th May. Therefore we have taken the decision to push back the date for physical document checks to resume from 21st June.”

From 21st June, employers must either:

  • check the applicant’s original documents, or

  • check the applicant’s right to work online, if the applicant has given the employer their share code.

Because of the effects of the pandemic, it may be a problem for some applicants to supply evidence of their right to work in the UK. This means that employers will have to be careful to make sure that no applicant or employee is discriminated against if they cannot show their document on request.

Retrospective checks

If an employee has been subject to a COVID-19 adjusted check between 30th March 2020 and 20th June 2021, there is now no need for the employer to carry out a retrospective check. This alters the guidance issued in March 2020, which said that a retrospective check would be required.

It will be a defence for employers to show that the check they have carried out during the period specified above was done in the prescribed manner or in the way set out in the COVID-19 adjusted check guidance, outlined above.

Points to bear in mind

It remains an offence to work illegally in the UK. If an individual is disqualified from working because of their immigration status, they may be liable to enforcement action. If the applicant or existing worker cannot show their documents when asked, the employer must contact the Home Office Employer Checking Service, who will verify whether the person has a right to work.

If it turns out that the individual does have the right to work, the Service will send the employer a Positive Verification Notice – this will give the employer what is known as a statutory excuse for six months from the date the notice is issued.