Further Changes to Right to Work Checks Effective 17 May 2021
Since 30 March 2020, due to Covid-19, the Home Office has allowed an adjustment to the normal right to work (“RTW”) check process which must be undertaken by employers if they wish to avoid any potential liability for employing an individual who does not have the appropriate immigration permission to undertake their employment in the UK. Under this adjustment, employers can check an employee’s immigration status in the UK by using scans or copies of documents instead of having to see the original documents. Alternatively, the employer can use the on-line RTW checking service if the employee has one of the following:
a. Biometric Residence Permit; or,
b. Biometric Residence Card; or,
c. status under the EU Settlement Scheme or Points Based System.
As of 17 May, this adjustment will cease and employers will once again be required to check original documents, unless they are able to use the RTW checking service. Since the on-line service can only be used to check the RTW status of migrant workers, this means that, from that date, in the majority of situations, employers will be required to physically inspect prospective employee’s original documents and carry out the check either in the presence of the employee or via a live video link. Even if they are using the on-line service, employers will still need to meet the prospective employee in person or via a live video link.
When the Home Office brought in the temporary adjustment to the RTW checks last year, it initially said that, within eight weeks of the temporary adjustment coming to an end, employers would have to undertake a retrospective full check on all affected employees. The Home Office has now announced that a retrospective check will no longer be required. Of course, where an employee’s RTW status is time limited, the normal follow up RTW rules will still apply from 17 May 2021.
Although lockdown is easing, the most recent government guidance recommends that people continue to work from home where possible. In line with this, many offices are still closed and people are continuing to work from home. The ending of the adjustment to the RTW check procedures could therefore be seen as premature and could create issues for both employers and employees.
Where it is not possible to use the RTW checking service, prospective employees will have to send their original documents to employers in sufficient time for the RTW check to be made before they start work. Some employees will understandably be reluctant to surrender documents in case they are lost. Employers may wish to use couriers for security but this will impose additional costs on them at a time when many businesses are already struggling.
Further, those people who are making the check are likely to be working from home and may not wish to provide their private home address to other employees.
Employers will therefore need to consider carefully how to adapt to these changes to ensure they continue to comply with the RTW check requirements.
Right to Work Checks on EEA and Swiss nationals from 1 July 2021
EEA and Swiss nationals who were in the UK before 11pm on 31 December 2020 have until 30 June 2021 to make an application for permission to remain in the UK under the EU Settlement Scheme. Under the EU Settlement Scheme, individuals are granted either settled status, which enables them to remain in the UK indefinitely, or pre-settled status, which enables them to remain in the UK for up to five years. Those who have obtained pre-settled status may be eligible to apply for settled status once they have lived in the UK for five years.
Any EEA or Swiss nationals who wish to come to the UK after 31 December 2020 to live, work or study need to obtain UK immigration permission before they travel to the UK. The exception to this is Irish nationals who continue to have the right to live, work and study in the UK purely on the basis of their nationality.
At present, employers who are undertaking RTW checks on EEA and Swiss nationals are able to satisfy the relevant requirements simply by checking that the individual has a valid EEA / Swiss passport or national identity card. The EEA / Swiss national is not required to demonstrate that they have immigration permission to work in the UK.
However, from 1 July 2021, EEA and Swiss nationals (except for Irish nationals) will have to provide evidence of their immigration status, instead of just their nationality, to prove their RTW in the UK. For these nationals, employers will normally have to use the Home Office online RTW checking service as the Home Office is not issuing hard copy immigration documents to EEA / Swiss nationals. Instead, they are being issued with a virtual status linked to their passport which can only be verified online.
To ensure they are not caught out by the changes, employers should therefore ensure they have updated their RTW check processes before 30 June 2021 deadline. They may also wish to check that all relevant EEA and Swiss employees have applied for settled or pre-settled status under the EU Settlement Scheme by this date.