Home Office publishes new guidance on right to work checks for European nationals

Home Office publishes new guidance on right to work checks for European nationals

Temporary relaxation on right to work checks due to COVID-19

Since 30 March 2020, temporary COVID-19 adjusted measures have been in place for employers in relation to carrying out right to work checks. During this period employers have been permitted to carry out right to work checks over video calls, rather than in person, and they have been able to check scanned copies of documents, rather than originals. For more details on carrying out the COVID-19 adjusted checks, see our previous article.

The Home Office had previously announced this COVID-19 concession would end on 21 June 2021. However, following the government’s recent delay in lifting COVID-19 restrictions and given that guidance to work from home is still in place, the Home Office has announced that the COVID-19 adjustments will remain until 1 September 2021. Until then employers may continue to undertake virtual right to work checks.

From 1 September 2021, employers must carry out right to work checks in the standard prescribed manner in order to protect themselves against a possible civil penalty if an employee is found not to have the right to work in the UK. This can be done by the employer:

  • Checking the individual’s original documents in the individual’s presence
  • If the individual has a biometric residence permit or has settled or pre-settled status under the EU Settlement Scheme, checking their right to work online here (if they have provided a share code)

Based on previous guidance issued, we anticipate that employers will not need to carry out retrospective checks where COVID-19 adjusted checks were carried out between 30 March 2020 and 20 June 2021 (inclusive) but we are awaiting confirmation on this.

Comment

Even once working from home restrictions are lifted, the requirement to undertake in person checks of original documents may prove to be problematic for many businesses, given many employees are still likely to work remotely. Employers will need to consider their processes around right to work checks carefully to ensure that right to work checks are undertaken correctly for all new joiners before their employment starts. In most cases, this will mean arranging an in person meeting to carry out these checks before the employee’s start date. Online checks will only be possible for individuals with status under the EU Settlement Scheme or where the individual has a biometric residence permit. Online checks will not, for example, be possible when checking the passport of a British national.

Unfortunately, if employers do not carry out the right to work check correctly they will not have a defence against a civil penalty of up to £20,000 if the individual is later found to be working illegally. Further, if the employer is registered with the Home Office as a sponsor, one of the sponsor duties is to ensure that right to work checks are undertaken correctly in relation to all employees and the Home Office could therefore take action if checks are not being undertaken correctly.

The latest guidance from the Home Office is available here.

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