Further Extension of Right to Work Check Concessions to 5 April 2022

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03 September, 2021

In March 2020 when the pandemic first took hold, the Home Office introduced temporary measures which allowed employers to conduct right to work checks remotely during lockdown when employers could not meet new employees face-to-face.

Since then, the measures have been extended several times but were due to come to an end on 31 August 2021 and in-person checks were to resume. However, on 26 August 2021, the Home Office announced that these 'temporary' measures will be extended into the new year until at least 5 April 2022 (inclusive) in light of positive feedback on the ability to carry out remote checks.

The Home Office commented: 'deferring the end date of the adjusted checks to 5 April 2022 ensures the right to work scheme continues to operate in a manner which supports employers, whilst we look to implement a long-term, post-pandemic solution.'

This indicates the Home Office's intention to modernise right to work checks and it will be a welcome change for a number of organisations who are looking to make remote working a permanent structure going forwards.

The extension from the Home Office will likely assist sectors that are facing staffing shortages as a result of the pandemic and also Brexit.

What are the adjusted measures?

Currently, employers can check a job applicant / employee's right to work in the UK without requiring their physical ID documents or the individual in person. Instead, employers are required to:

  • Ask for a scanned copy or photo of the original documents
  • Hold a video call with the job applicant / employee and ask them to hold their original documents to the camera, ensuring that the original and copy documents are the same and the individual resembles the ID photo
  • Record the date the check is made on the copy documents and state "adjusted check undertaken on [DATE] due to covid-19"

Or, if the individual has:

  • a Biometric Residence Permit; or
  • a Biometric Residence Card; or
  • been granted status under the EU Settlement Scheme; or
  • been granted status under the points-based immigration system,

the employer can instead use the online right to work checking service (whilst video calling with the individual), provided that the individual gives the employer permission to do so.

If using the online service, employers will have a defence against a civil penalty. They do not need to see or check the individual's documents as right to work information is provided in real time directly from Home Office systems. Employers cannot insist individuals use this service or discriminate against those who choose to use their documents to prove their right to work.

From 6 April 2022, employers must once again check individuals' original documents, rather than scans or photographs of the originals, or use the Home Office's online right to work check tool. Checks must be performed in the physical presence of the individual or via a live video link, while the original documents are in the possession of the employer. Further guidance is anticipated closer to the time.

As with previous extensions, the Home Office has confirmed that employers will not be required to carry out full right to work checks retrospectively where a covid-19 adjusted check was completed between 30 March 2020 and 5 April 2022 under the concessions.

For more information contact Marianne Hessey in our Employment & HR department via email. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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