Upcoming changes to in-person right to work checks

Since 30 March last year, the government has been allowing employers to use video calls and accept
scans, or photographs, of right to work documents. Remote screening services, with verification taking place over video with a trained professional, has enabled thousands more people to start work during lockdown easing the damage caused by the pandemic. Digital checks have given employers more flexibility and enabled them to adapt quickly to spikes in demand over the last year. This has helped the move towards more flexible working hours enjoyed by millions of UK workers as well as helping in the fight against Covid.

Updated guidance released by the Home Office said digital right to work checks – introduced as a
temporary measure at the start of the pandemic to support businesses to work remotely – would be
extended until the end of August 2021.

Employers will now be required to resume in-person checks from 1 September.

While compliance may have dropped down the risk agenda for many organisations, businesses
continue to operate under a duty to conduct right to work checks as prescribed by law. This allows
them to rely on a statutory defence in the event of an issue with the working status of any of their
employees. If an employer is found to have known, or had reasonable grounds to believe, that an
individual did not have valid working status, they risk substantial fines and criminal sanctions.

The latest changes come as the Home Office resumes illegal working enforcement efforts following
the temporary suspension of compliance auditing because of the pandemic. It has also recently
restarted onsite immigration inspections. To ensure compliance and to avoid Home Office scrutiny,
employers will need to ensure their document checking procedures meet two new changes in the
right to work regime.

End of Covid-adjusted rules

Since 30 March 2020, employers have been permitted to conduct right to work checks by viewing
scanned or photocopied documents, rather than originals. These are referred to as Covid-adjusted
checks. For any individuals starting work from 1st September 2021, the employer must once again be
in possession of the original documents when carrying out a right to work check either physically
present with the individual or virtually using live video (as it was pre-Covid), unless using the Home
Office’s online checking service.

Relying on scanned or digital copies of original documents, or viewing the documents via video link,
will not be acceptable or provide a defence against enforcement action.

Corrected checks will not need to be conducted retrospectively where a Covid-adjusted check has
been used correctly between 30th March 2020 and 31st August 2021 inclusive.

Checks for EU workers

The online right to work checking service is available, but only for individuals with lawful status under the EU settlement scheme or the points-based system, or those with a bio metric residence permit or residence card. The individual must also give the employer permission to use this service.

After conducting an online check using the share code, employers must then meet the new employee
face-to-face on their first day to confirm the photograph from the online check is of the same person
that has attended for work.

Other Changes affecting EU workers

The second significant, upcoming change to the prevention of illegal working regime comes at the end of the EU settlement scheme transition period on 30th June 2021.
Until 30 June, EU workers can continue to present a valid passport or national identity card to prove
their eligibility to work to employers. From 1st July, however, new rules will require the employer to
be given evidence of the individual’s status under the EU settlement scheme or proof of an appropriate and valid work-based visa.

Where a document check confirms a time limit applies to an EU national’s right to work in the UK, a
follow-up check should be carried out before the expiry date of their permission. This could be, for
example, where they only have pre-settled status under the EU settlement scheme or they have been
granted limited leave to remain under the points-based system.

Compliance tips

As the Home Office resumes illegal working enforcement efforts, employers should prepare for the
upcoming changes by ensuring:

• adjusted document checks conducted between 30 March 2020 and 31st August 2021 inclusive
have been clearly marked as an ‘adjusted check undertaken on [insert date] due to Covid-19
• full right to work checks relying on original documents in physical form are resumed from 1st
September 2021 or for EU workers, make use of the online employer checking service
• individuals are not discriminated against where they do not agree to the use of the online
checking service; and
• anyone involved in recruitment and on boarding within the organisation understands the
changes taking effect from 1st September, and the implications of these when conducting
document checks.

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