How to prepare for the return of physical right-to-work checks

UK Visas & Immigration will investigate employers that are non-compliant
Guy Corbishley / Alamy Stock Photo

In-person right-to-work checks might have been delayed until lockdown restrictions are lifted, but that should not mean employers cannot get to grips with the new post-Brexit immigration requirements. Tijen Ahmet explains how organisations can prepare.

Many employers breathed a sigh of relief when the government announced it would delay the return of physical right-to-work checks until pandemic restrictions are lifted from 21 June.

As this date approaches, however, many employers may be considering how best to approach hiring and retaining foreign workers as they find their “new normal”.

Remote working is set to remain in place in many organisations for the foreseeable future, which could make the revised immigration guidance around right to work assessments more complicated to enforce, especially when it comes to submitting documentation as proof of residency, for example.

The rule changes as a result of both Brexit and the pandemic could see employers facing increased scrutiny from the Home Office, potentially leading to fines if they fail to carry out their duties correctly.

So, in light of these upcoming changes, what do employers need to know about new right to work guidance should they wish to employ foreign workers in a post-Brexit, post-pandemic Britain?

Extension to EU nationals

Right to work checks are a Home Office required process and statutory requirement that seek to establish if a worker has a right to be employed in the UK by validating their identity and visa documents.

Although these assessments are nothing new for employers seeking to hire an international workforce, they are now being extended to EU nationals in the wake of Brexit and the end of the EU Settlement Scheme from 1 July 2021.

The Covid pandemic led to temporary adjusted right-to-work processes for businesses hiring non-UK staff from 30 March 2020.

These concessions allowed employers to carry out checks digitally by video calls, rather than requiring the employee to present physical documents in person, and allowed employees to send scanned copies of documents rather than sending original ones.

However, with the concessions proposing to end on 20 June, in line with an end to the lockdown restrictions in England, the Home Office guidance is expected to be updated once again. This will cater for the end of the EU Settlement Scheme for European nationals on 30 June 2021.

Physical proof

From 21 June onwards, employers will once again be expected to conduct the usual, pre-Covid checks on their employees. Luckily for businesses, the revised guidance does state that checks won’t have to be done retrospectively on all staff checked between 30 March 2020 and 20 June 2021, which will put many employers who hired during the pandemic at ease, as long as digital verification was undertaken in the correct way.

The main difference after this date will be that employees must provide a physical version of their documents that the employers must check in the presence of the holder, scan and record the date of the check and keep this on file, to prove that they have permission to work. Digital or scanned versions of these documents will no longer be accepted with manual checks.

With the changes fast approaching, employers need to begin preparing or potentially face the scrutiny of the UK Visas and Immigration (UKVI).

In order to prevent issues down the line, the best first step is to begin reviewing or adapting internal checks and processes to ensure they are compliant. This could mean simply revising procedures or creating new policies, to conform to the new immigration rules and the end of the UK’s lockdown restrictions.

Internal review

An internal review is especially important for both businesses looking for their workforce to return to the office and those considering making remote working the new norm. The requirement of having to present a physical document could raise some issues for some individuals, especially as the pandemic has made it harder for some people to obtain the right documents.

Employers need to be particularly careful to avoid discriminating against job applicants or employees who may be unable to easily source the correct documentation. Some people are also still concerned about meeting others in person, whether because of their own health or that of their family, and this must be kept in mind.

In order to prevent issues down the line, the best first step is to begin reviewing or adapting internal checks and processes to ensure they are compliant.”

An alternative to presenting a physical document is the Home Office’s online right to work checking service.

This service is free and is available to individuals who hold a Biometric Residence Permit (BRP), or those who have been granted settled or pre-settled status under the EU Settlement Scheme or points-based immigration system.

This being said, the service can only be used with the willingness of the individual who provides a ‘share code’, and employers must be careful not to discriminate against those who refuse to allow access to their records.

Should a business fail to take the necessary steps towards compliance, the UKVI could begin an investigation and if they are proven to be non-compliant, the business could face serious ramifications, from fines to forced closure of the businesses and even custodial sentences where businesses are convicted of criminal offences.

The government guidelines coming into play this summer could have a substantial impact on businesses that are not prepared for, or aware of, the changes.

For businesses that are unsure whether they are compliant, now is the time to read up on the rules and begin adapting to the new system. Regardless of sector or size, keeping in line with the new guidance will ensure businesses stay in the clear and are free to hire whoever they want, no matter where they are from.

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Tijen Ahmet

About Tijen Ahmet

Tijen Ahmet is a business immigration expert and legal director at Shakespeare Martineau
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