Immigration Update: The right to work
Published on 16th Sep 2021
With the Home Office constantly changing its position with regards to how employers may conduct right-to-work checks in the light of both Brexit and Covid, it has been hard to keep up. Here, we provide an up-to-date guide on what employers should be doing and some important dates of which to be aware.
There have been a few changes over the last 18 months in relation to right to work (RTW) checks, mainly due to the Covid-19 pandemic and Brexit.
Employers have a legal obligation to ensure they are not employing individuals who do not have the RTW in the UK. These checks are conducted to make it harder for people with no right to work in the UK to unlawfully obtain or stay in employment, and to make it easier for employers to ensure that they only employ people who have permission to do the work in question.
If RTW checks are carried out correctly, a statutory excuse against liability for a civil penalty will be established. This, however, may be time limited as RTW is an ongoing responsibility.
In person RTW checks:
Online RTW checks:
Adjusted RTW check due to Covid-19
The end date for the temporary adjusted checks has now been deferred to 5 April 2022 (inclusive). The UK Visas and Immigration (UKVI) has made the decision to defer the date following the positive feedback they received about the ability to conduct checks remotely.
The UKVI has initiated a review of the availability of specialist technology to support a system of digital RTW checks in the future. The intention is to introduce a new digital solution to include many of those who are unable to use the Home Office online checking service, including UK and Irish citizens. This will enable checks to continue to be conducted remotely but with enhanced security.
Deferring the end date of the adjusted checks to 5 April 2022 ensures the RTW scheme continues to operate in a manner that supports employers, while the UKVI looks to implement a long-term, post-pandemic solution.
Up to and including 5 April 2022, if you are carrying out a temporary adjusted check, you must:
- ask the individual 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 individual – ask them to hold up the original documents to the camera and check them against the digital copy of the documents, record the date you made the check and mark it as "adjusted check undertaken on [insert date] due to Covid-19";
- if the individual has a current biometric residence permit or biometric residence card or has been granted status under the EU Settlement Scheme the online right to work checks could be carried out with the individual's permission.
You do not need to carry out retrospective checks on those who had a Covid-19 adjusted check between 30 March 2020 and 5 April 2022 (inclusive). This reflects the length of time the adjusted checks have been in place.
You will maintain a defence against a civil penalty if the check you have undertaken during this period was done in the prescribed manner or as set out in the Covid-19 adjusted checks guidance.
It remains an offence to work illegally in the UK.
RTW checks and EU nationals
From the 1 July 2021, all EU nationals will need to provide evidence of their permission to be in the UK with either a status under the EU Settlement Scheme or a UK visa obtained under the Immigration Rules.
The UKVI RTW guidance states that, for current EU employees, there is no need to conduct a retrospective check on their status. However, we have found, in practice, that most UK employers want to conduct the retrospective check to ensure their current EU workforce has the correct permission to be in the UK. We have been assisting many UK employers in this regard.
It is important to remember that these checks should be carried out carefully to ensure no allegations of discrimination could be raised.
New EU starters, from 1 July 2021, should provide evidence of their status to remain and work in the UK – the only exception to this is Irish nationals who can still provide their passport as evidence of their RTW in the UK.
RTW is a critical step in any new hire and onboarding and should be carried out carefully and in line with the UKVI guidance. Those found to be employing worker illegally in the UK can face penalties of £20,000 per illegal worker, up to five years in prison (in extreme circumstances) and have their details publish on a publicly available register on the UKVI website. Please do contact us for support in relation to RTW checks.