Flexibility over right-to-work checks ends from 17 May

Employers will have to check applicants’ original right-to-work documents where possible from 17 May, according to updated Home Office guidance.

During the pandemic, organisations have been able to check an individual’s right to work in the UK virtually, asking them to submit a scanned copy or photo of the original via email and then using video platforms where the worker holds up the original document to check against the digital copy that has been sent.

They have also been able to use the online right to work checking service while on a video call with an applicant for recruits that have biometric residence permits or biometric residence cards.

However, the Home Office updated its guidance yesterday to indicate this would no longer be the case from 17 May.

The guidance explains that if the business is continuing to operate remotely and in-person checks are not possible, the individual may have to courier original copies of documents verifying their right to work to their employer, who will then need to verify their identity over a video call.

Employers will not need to carry out retrospective checks on anyone who had a Covid-19 adjusted check between 30 March 2020 – when the allowances started – and 16 May 2021.

Chetal Patel, partner at law firm Bates Wells’ immigration practice, said that businesses need to be careful not to fall foul of the guidance. “If businesses proceed with the manual right to work check, they’ll still need to be in possession of the original documents which can be checked via a live video link,” she advised.

“This could create complications for businesses that are continuing to operate remotely for health and safety reasons during the pandemic. You can see the problems now with couriers having to be booked to deliver original documents to someone’s private address. Employers will need to ensure they have resources and protections in place to carry out the checks.”

Patel added that the ending of this flexibility should be taken as a “warning sign” that the Home Office would harden up its stance on illegal working in months to come.

Earlier this week, it was revealed that the government had issued 77 fines for breaches of right to work legislation in the final quarter of 2020, but virtually none during the earlier months of the pandemic.

Patel warned of an increase in compliance visits from Home Office officials. “Indeed by resuming compliance visits and the rise in penalties being issued for illegal working the Home Office has signalled that it’s business as usual. Unfortunately, business as usual means taking a hardline.”

Online checks will only be possible if employees have been provided a share code by the Home Office, which enables them to prove their immigration status.

There is also likely to be an uplift in immigration checks after 30 June, when the deadline for EU workers gaining settled or pre-settled status closes. However, employers are still awaiting fresh guidance on how to conduct Right to Work checks on EEA nationals after that date.

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