Further Changes on Conducting Right to Work Checks - What Do Employers Need to Know?

Following the publication of the Home Office's draft Code of Practice on Preventing Illegal Working earlier this month, setting out the documents employers can accept when conducting Right to Work checks after 30 June 2021, the Home Office have now published further updates. These affect the position of EEA national employees after that date, and clarify the date on which employers are required to resume in-person checks.

COVID-19 Right to Work Checking Process to Remain in Place Until 31 August 2021

As we have reported previously, the Government plans to end the concession to the Right to Work checking process which was introduced in response to the coronavirus pandemic and allows employers to conduct checks remotely instead of having to meet with employees or prospective employees face-to-face. The resumption of in-person checks was initially scheduled for 17 May 2021 and was then pushed back to 21 June to coincide with the date when Step 4 of the Government's COVID response was initially supposed to take effect.

Following the postponement of Step 4, the resumption of in-person checks has also been delayed, although not to 19 July, but instead to 1 September. Therefore, the last day on which an employer can conduct a remote Right to Work check on an employee or prospective employee will be 31 August 2021.

Further Guidance for Employers on Conducting Right to Work Checks After 30 June 2021

Following the publication of the Home Office's Code of Practice on Preventing Illegal Working, the Home Office have now published a more detailed guidance document for employers explaining the changes in more detail. Our blog post goes into further details of how these checks can be carried out.

The guidance reminds employers that there is no requirement for a retrospective check to be undertaken on EEA citizens who entered into employment up to and including 30 June 2021. Employers will maintain a continuous statutory excuse against liability for a civil penalty if the initial checks were undertaken in line with the guidance in force at the time the check was undertaken.

However, a very common question we are hearing from employers is what they should do if, after 30 June, they discover that an existing EEA national employee has failed to apply for status under the EU Settlement Scheme (EUSS) and therefore does not hold any immigration status. The guidance for employers now addresses this specific question setting out a process for employers to follow as a transitional measure until 31 December 2021 in the event in circumstances where the employer identifies that an EEA national employee did not apply to the EUSS by 30 June 2021.

What Steps Should Employers Take?

The steps employers should take are as follows:

• Advise the individual to make an application to the EUSS within 28 days and provide the employer with a Certificate of Application (CoA). If they do not make an application to the EUSS within this 28 days, the guidance requires the employer to "take steps to cease their employment in line with right to work legislation".

• Once the employer has been provided with a CoA, they must then contact the Home Office Employer Checking Service (ECS) for confirmation that the individual has applied.

• Where an application has been made, the ECS will provide the employer with a Positive Verification Notice (PVN), which will give the employer a statutory excuse against a civil penalty for six months. The individual can continue working for the employer during this time.

• Before the PVN expires, the employer must do a follow-up check with the ECS in order to maintain their statutory excuse against a civil penalty. If the individual has been granted status before the PVN expiry date, then the employee will be able to prove their right to work by providing the employer with a 'share code' so that their digital status can be viewed online.

• Employers will be given a further PVN for 6 months if the follow-up check confirms that the application is still awaiting a decision. Further follow-up checks will need to be taken until an outcome is determined. If the application is refused, the employer won't get a PVN and at that stage will need to take steps to terminate the individual's employment.

Employers are advised to maintain accurate records of checks and actions taken when following the above steps.

Note that this process only applies to EEA nationals employed before 1 July 2021. For EEA nationals employed on or after that date, employers are required to follow the required steps to obtain, check and retain the documents set out in the guidance and Code of Practice.

For further advice on complying with the requirements for conducting Right to Work checks, please contact Tom Brett Young in our Immigration Law team on 07393 148352, or complete the form below.