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Education briefing - Right to work checks: the end of temporary adjustments due to COVID-19

  • United Kingdom
  • Education - Briefings
  • Education - Coronavirus

27-04-2021

 

An announcement from the Home Office on 20 April 2021 changes the COVID-19 adjusted right to work check requirements from 17 May 2021 onwards.

Recognising the difficulties caused to the normal method of carrying out right to work checks by the restrictions introduced by the pandemic, a modified process to undertake right to work checks has been in place since 30 March 2020. It has been possible for employers to make the relevant document checks via video calls, in the expectation that these would be supplemented by physical checks on original right to work documents in future.

Right to work checks going forward

The announcement of 20 April 2021 states that either physical checks on original right to work documentation in person, or checks of a person’s right to work status using a share code online, will again be necessary for right to work checks conducted from 17 May 2021 onwards. Therefore, from 17 May 2021 onwards, institutions will no longer be able to accept a scanned copy or a photo of original documents, as this will not provide them with a defence against a civil penalty.

Virtual checks under the adjusted COVID-19 process will remain permissible until 16 May 2021 and will also be acceptable in respect of anyone commencing work after that date, where the check has been carried out before 17 May 2021. In a generic email sent to employers announcing the change, the Home Office confirmed that this would be acceptable – though it did add that employers might wish to consider if there were opportunities to safely carry out standard right to work checks in advance of the temporary measures coming to an end, particularly where employment does not start until on or after 17 May 2021.

There will, however, be no requirement to carry out retrospective physical checks on documentation seen virtually between 30 March 2020 and 16 May 2021 using the COVID-19 adjusted process; the Home Office announcement advises this is to reflect the fact that the modified process has been in place for a long time and that employers currently need support where possible. An institution will, therefore, maintain its statutory excuse provided the check it undertook between 30 March 2020 and 16 May 2021 complied with the Home Office’s guidance in force at that time.

Should an employee be working on a time-limited right to work document which requires a follow-up check after 16 May 2021, institutions must ensure that the follow-up check is undertaken in accordance with the employer's guide to right to work checks.

The announcement is welcome. We discussed the prospect of making the retrospective right to work checks with several clients and feel this would have presented a serious challenge. We hope immigration officials will consider checks which have been made virtually with due consideration of the operational difficulties HR teams have faced throughout the pandemic.