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Right to work checks changes from 01 September 2021

Changes to ‘Right to Work’ checks for sponsors

From 1 September 2021, employers will revert to face-to-face and physical document checks as set out in legislation and guidance. This will ensure employers have sufficient notice to put measures in place to enable face-to-face document checks.

  • if the worker has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system you can use the online right to work checking service while doing a video call – the applicant must give you permission to view their details.

What is right to work check?

This essentially is as the name suggests relates to checking a job applicant’s right to work in the UK. You could face a civil penalty if you employ an illegal worker and have not carried out a correct right to work check.

Illegal working can socially and economically impact the UK. It destabilizes the businesses and workers that are staying within the law, exploit and put to risk those who are migrating workers.

There have been many occasions when the Home office has found illegal workers being migrated unlawfully, potentially risking the health and safety regulations. The Home Office has now been increasingly promoting awareness toward preventing illegal working and is taking robust actions to deal with those unlawfully working in the UK and take stricter measures to prosecute them or put heavy penalties and even remove them from the UK. You could be charged as much as £20,000 for each illegal worker or face criminal prosecution.

Checking an individual’s right to work using the temporary COVID-19 adjusted check measures

The temporary changes were made on 30 March 2020 and remain in place until 31 August 2021 (inclusive): if you are carrying out a temporary adjusted check, you must:

  • Ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app
  • Arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19
  • If the worker has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system you can use the online right to work checking service while doing a video call – the applicant must give you permission to view their details.

End of temporary adjustments

The temporary adjustments to Right to Work checks due to COVID-19 are ending.

From 1 September 2021, you must either:

  • Check the applicant’s original documents, or
  • Check the applicant’s right to work online, if they’ve given you their share code

Due to the impact of COVID-19 some individuals may struggle to show evidence of their right to work in the UK. As a result, you must take extra care to ensure no-one is discriminated against as a job applicant or employee because they are unable to show you their documents.

You can follow the link to the govt website and check the applicant’s right to work online

If the job applicant or existing worker cannot show their documents

You must contact the Home Office Employer Checking Service. If the person has a right to work, the Employer Checking Service will send you a ‘Positive Verification Notice’. This provides you with a statutory excuse for 6 months from the date in the notice

Retrospective checks

You do not need to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 31 August 2021 (inclusive). This reflects the length of time the adjusted checks have been in place and supports business during this difficult time.

You will maintain a defence against a civil penalty if the check you have undertaken during this period was done in the prescribed manner or as set out in the COVID-19 adjusted checks guidance.

It remains an offence to work illegally in the UK. Any individual identified who is disqualified from working by reason of their immigration status, may be liable to enforcement action.

Checking the applicant’s original documents

  • Ask to see the applicant’s original documents.
  • Check that the documents are valid with the applicant present.
  • Make and keep copies of the documents and record the date you made the check

What to check

You need to check that:

  • The documents are genuine, original and unchanged and belong to the person who has given them to you
  • The dates for the applicant’s right to work in the UK have not expired
  • Photos are the same across all documents and look like the applicant
  • Dates of birth are the same across all documents
  • The applicant has permission to do the type of work you’re offering (including any limit on the number of hours they can work)
  • For students you see evidence of their study and vacation times
  • If 2 documents give different names, the applicant has supporting documents showing why they’re different, such as a marriage certificate or divorce decree

Making a copy of the documents

When you copy the documents:

  • Make a copy that cannot be changed, for example a photocopy
  • Make sure the copy is clear enough to read
  • For passports, copy any page with the expiry date and applicant’s details (for example nationality, date of birth and photograph) including endorsements, for example a work visa
  • For biometric residence permits and residence cards (biometric format), copy both sides
  • For all other documents you must make a complete copy
  • Keep copies during the applicant’s employment and for 2 years after they stop working for you
  • Record the date the check was made

Check out the newly developed ‘right to work’ video here

Disclaimer: No material or information provided on this website should be construed as legal advice. Readers should always seek appropriate professional advice to resolve their Legal Matters.
About the Author

  Shyam Selvaraj

Shyam joined the firm in 2021 as a Business Support Manager. He is responsible for ensuring the best practice standards within the firm and improving our legal services delivery along with initiating and maintaining relationships with our clients

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