13 May, 2021
The Home Office has announced that from 21 June 2021, the concession on Right to Work (RTW) checks, permitting employers to conduct RTW checks via video, will end.
The amended checks were due to end on 17 May 2021, however the Home Office confirmed shortly beforehand, on 12 May 2021, that their consultation had shown that the majority of employers will not be back in the office to facilitate the enhanced checks, and as such, the date has been pushed back.
Prior to the pandemic, employers usually have complied with their immigration duties and requirements in respect of RTW checks in person, with only limited options to carry out such checks remotely. However, with the implementation of social distancing and lockdown, the closure of offices and the prohibition on most travel, it became difficult for employers to continue with in person checks.
On 30 March 2020, measures were introduced to temporarily allow employers to conduct RTW checks remotely, via video call and until 20 June 2021, employers may continue to use this adjusted process, which involves an applicant submitting a scanned copy or photo of their original documents to their employer via video, the applicant holds up the original documents to the camera and the employer checks them against their digital copy.
However, from 21 June 2021, employers will be required to conduct the conventional RTW checks on or before an employees' first working day) and for any subsequent checks. This means that employers should either check the applicant's original document(s) in person, or check the applicant's right to work online (if the individual holds a biometric residence permit or residence card, or has been granted UK immigration status under the EU settlement scheme or points-based immigration system, and permission is granted by the individual).
If it is not possible for an employer to check original document(s) in person, for example if they are continuing to operate remotely, the applicant can post their original document(s) and the employer can check the physical original document whilst conducting a video call with the applicant. Crucially, it will no longer be sufficient to check document(s) via video or a digital copy.
Provided that any adjusted RTW checks carried out between 30 March 2020 and 20 June 2021 (inclusive) were done so in the prescribed manner, employers will not be required to carry out a retrospective check and employers will continue to have a statutory excuse against liability. This is welcome news for employers.
This change is likely to have a notable administrative impact on businesses, particularly for those who continue to operate wholly or partially remotely, and employers must ensure to have resources and protections in place to carry out checks and to facilitate the handling and/or transport of original documentation. Employers should also consider balancing the risks associated with Covid whilst ensuring an applicant is comfortable with the process.
Further, due to the impact of Covid, some applicants may struggle to show evidence of their RTW in the UK and employers should take extra caution to ensure there is no discriminatory conduct if a person is unable to show the required documentation or there are delays.
The ending of the flexibility which has been place for over a year should be deemed as a warning sign that the Home Office may be toughening up on immigration checks and compliance visits.
Businesses therefore would be well advised to review their immigration compliance, which may have taken a 'back seat' whilst tackling the challenges that the pandemic brought. It is vital that employers are comfortable that they have done all required checks during this time in full compliance with either the standard requirements or the adjusted checks, such that they have a statutory excuse to illegal working which they could rely upon if the need arises.
If you have any queries about the conclusion of the adjusted checks from 21 June 2021, or require assistance with reviewing your business' RTW checks, please don't hesitate to contact Amy Stokes, specialist Business Immigration lawyer and Partner in our Employment team.