A right to work check is essential for an employer to establish a statutory defence against the imposition of a civil penalty for employing an illegal worker (which can be up to £20,000 per illegal worker). The check must be undertaken on all potential employees regardless of nationality or ethnic origin before the employee starts work.
Temporary right to work check
Temporary adjusted right to work check measures have been in place since 30 March 2020 due to COVID-19. This has allowed potential employees to send scanned documents (rather than originals) to an employer by email or a mobile app. The employer has then been allowed to conduct a right to work check by checking the original documents via a video call.
However, these adjusted right to work check measures are only temporary. The Home Office originally said that these checks would come to an end on 31 August 2021 but this has now been extended to 5 April 2022.
The Home Office has updated its guidance on right to work checks accordingly.
The updated guidance confirms that until 5 April 2022:
- checks can be carried out over video calls;
- job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals;
- employers can then arrange a video call, ask the worker to hold up the original documents to the camera and check them against the digital copy of the documents. Employers should record the date they made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”;
- if the worker has a current Biometric Residence Permit or has been granted status under the EU Settlement Scheme or the points-based immigration system, employers can use the online right to work checking service while doing the video call; and
- employers should use the Home Office Employer Checking Service if a prospective or existing employee cannot provide any of the accepted right to work check documents.
What must employers do from 6 April 2022?
From 6 April 2022, employers must once again either:
- check the potential employee’s original documents in person; or
- check the potential employee’s right to work online (if they have provided the employer with their date of birth and share code). It will not be possible to conduct online right to work checks in every case, as not all individuals will have an immigration status that can be checked online.
If employers are checking the potential employee’s original documents in person then they must:
- Obtain the relevant original document(s) from either List A (acceptable documents for a person who has a permanent right to work in the UK) or List B (acceptable documents for a person who has a temporary right to work in the UK);
- Check the document(s) are genuine, that they relate to the prospective employee and they are allowed to do the type of work the employer is offering; and
- Copy each document and retain the copy securely. The employer must also make a note of the date on which they conducted the check.
If the employer is using the online right to work checking service then they need to check that any photograph on the online check is of the prospective employee and retain a clear copy of the response provided (i.e. the ‘profile’ page confirming the individual’s right to work).
When the temporary COVID-19 measures were implemented, the Home Office said that follow-up checks on any employees who had had a COVID-19 adjusted right to work check would need to be carried out within eight weeks of the temporary measures ending. However, the Home Office has now confirmed that these retrospective checks will not be required. Employers will maintain a statutory defence against a civil penalty as long as they did a normal check or a COVID-19 adjusted check at the relevant time.
If you have any queries in relation to right to work checks then please contact a member of the Employment or Immigration team.
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