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COVID-19 Right To Work Check Concession Extended to 20 June 2021

on Friday, 21 May 2021.

The Government have announced a temporary extension to the coronavirus (COVID-19) concession permitting employers to conduct right to work checks remotely.

Update (18 June 2021) - On 18 June 2021, the Government announced that these changes have now been pushed back to 1 September 2021.

As we reported previously, the Government has announced that the COVID-19 concession permitting employers to conduct right to work checks remotely is to end. However, in a partial U-turn following widespread complaints that the original plan to reintroduce in-person checks on 17 May contradicted the Government's own COVID-19 roadmap, the date that the concession will end has been pushed back to 20 June 2021.

This brings the reintroduction of in-person checks on 21 June into line with the planned further easing of lockdown restrictions and social distancing measures on that date.

The COVID-19 Concession on Right to Work Checks

On 30 March 2020, the Government introduced temporary changes to the way in which employers can carry out right to work checks. Under the temporary measures - which were put in place to assist employers unable to meet with employees and prospective employees in person due to the pandemic - employers are permitted to:

  • carry out right to work checks over video calls
  • accept scanned or photographed documents sent via email or a mobile app rather than inspecting originals

These arrangements, described more fully in our blog post published shortly after they were introduced, were always described as temporary. The guidance also explained that employers would be required to carry out retrospective checks on employees whose documents were checked using the adjusted checking process.

The Government originally announced that these arrangements would come to an end on 16 May, but this has now been extended to 20 June 2021.

Coronavirus guidance employers

How to Carry Out Right to Work Checks After 20 June

From 21 June 2021, employers will be required to revert to conducting right to work checks in line with the statutory code of practice on preventing illegal working.

This will therefore involve:

  • obtaining the employee's original documents as prescribed in the code of practice or accessing the employee's right to work using the Government's online tool (only available if the employee holds a digital immigration status or biometric residence permit and provides the employer with a 'share code')
  • checking (in the presence of the prospective employee) that the documents relate to the individual and are original, unaltered and valid
  • copying and retaining the documents and recording the date of the check

Therefore, unless the employee or prospective employee holds a digital immigration status (such as status granted to EEA nationals under the EU Settlement Scheme) or a biometric residence permit, the employer and the employee will either have to arrange to meet in person or for the employee to send their original documents to the employer to be checked.

It is permitted for the check 'in the presence of the individual' to be conducted either in person or via a live video link. However, in either case the employer must be in physical possession of the original documents. For example, an individual could send their original documents to the employer by post to enable them to conduct the check with them via live video link. The employer may not rely on the inspection of the document via a live video link or by checking a faxed or scanned copy of the document though.

Are Employers Now Required to Conduct Retrospective Checks If the Temporary Arrangements Were Relied on?

Thankfully, the Government has confirmed that employers no longer need to carry out retrospective checks on employees who had a COVID-19 adjusted check between 30 March 2020 and 20 June 2021 (inclusive). Employers will therefore maintain a statutory excuse against a civil penalty if the check they conducted during that period was done in the prescribed manner or as set out in the COVID-19 adjusted checks guidance.

Are Right to Work Checks for EEA Nationals Still Changing?

This announcement precedes further anticipated changes to the right to work checking guidance which will take effect on 1 July 2021. Those changes reflect the end of the grace period which followed the Brexit transition, during which employers have still been able to accept EEA national passports and national identity cards as proof of right to work in the UK.

From 1 July 2021, new EEA national employees will be required to provide additional proof of their right to work in the UK, although we await the publication of the new guidance for precise details on how those checks are to be conducted.

If you need advice on conducting right to work checks, please contact Tom Brett Young in our Immigration Law team on 07393 148352, or complete the form below.

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