21st September 2022
A number of temporary changes were introduced to right to work checks from 30 March 2022 to aide employers with carrying out compliant checks during the Covid-19 pandemic when working from home was mandated by the Government. These changes will come to an end on 30 September 2022, after which all employers must carry out checks on original documents in the individual’s presence when conducting manual checks, in line with the Home Office’s Employer’s Guide to Right to Work Checks.
All employers are required to carry out right to work checks on individuals before they commence work, in order to ensure that the individuals are not disqualified from carrying out the work in question by reason of their immigration status.
By completing a check which is compliant with the Home Office Employer’s Guide, a statutory defence will be obtained against civil penalties which can otherwise be imposed where the employer is found to be employing an illegal worker.
The Covid-19 pandemic brought about a number of changes to the way people worked which made carrying out compliant checks on physical documents impractical. As such, on 30 March 2020 the Home Office introduced an adjusted right to work checking process, to account for the fact that many people were required to work from home during periods of national lockdown.
Since this date, employers have been able to carry out checks:
Where prospective or existing employees could not provide any of the accepted documents, employers have been required to continue using the Home Office’s Employer Checking Service which is available online. This process will remain unchanged.
The use of these adjusted measures will be permitted until 30 September 2022.
From 1 October 2022, employers will no longer be able to carry out adjusted right to work checks.
In practice, this means that employers will be required to carry out checks in one of the following ways, depending on the type of immigration permission the individual has:
As stated above, where an individual is not able to present acceptable evidence of their right to work because an application to the Home Office has been made but is outstanding, employers should continue to use the Employer Checking Service to obtain a positive verification notice.
Significantly, where carrying out manual right to work checks from 1 October 2022, employers will be required to obtain original documents from the Home Office’s list of acceptable documents. These documents must be checked in the presence of the individual, either in-person or via a video call. The fact that it will continue to be possible to verify the validity of documents via video call will be welcome, given that remote or hybrid working is increasingly common for many organisations. However this may still cause challenges where individuals working remotely are required to present their passport and are reluctant to do so by post.
Employers must then make and retain a clear electronic or hard copy of the document and make a record of the date on which the check was performed in the prescribed manner.
The Home Office has confirmed that employers will not be required to carry out retrospective right to work checks on those employees who had an adjusted check carried out between 30 March 2020 and 30 September 2022. A statutory defence will be maintained against civil penalties provided the check was carried out in line with the prescribed guidance on adjusted checks at the relevant time. However, organisations whose processes did not keep up with the evolving Home Office requirements would be well advised to undertake an audit and carry out checks retrospectively if there are concerns (while this will not afford the statutory excuse, it will provide an opportunity to identify any employees who may be of concern and deal with them appropriately).
Where an individual has a time-limited right to work, follow on checks will still be required before the expiry of their current immigration permission.
The Walker Morris Business Immigration team is available to assist with any queries you may have in light of the recent or upcoming changes to right to work checks, including reviewing policies and procedures, delivering training to staff and assisting with audits. If you require assistance on any of the issues raised in this article, please contact Shabana Muneer.
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