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Right to work checks: New requirements following COVID-19 lockdown

  • United Kingdom
  • Employment law
  • Global mobility and immigration

22-04-2021

 

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

A modified process to undertake right to work checks has been in place since 30th March of last year and throughout the period of COVID-19 lockdown. 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 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 17th May 2021 onwards. Therefore, from 17 May 2021 onwards, you can no longer accept a scanned copy or a photo of original documents, as this will not provide you with a defence against a civil penalty.

Virtual checks under the adjusted COVID-19 process will remain permissible until 16th May 2021 and, unless any clarification is issued, will also be acceptable in respect of anyone commencing work after that date.

There will 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 that the modified process has been in place for a long time and that businesses currently need support where possible. You will maintain your statutory excuse provided the check you 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, you 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 in future.