Withdrawal of COVID-19 Right to Work Checking Concession from 17 May 2021

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

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 has now announced that these arrangements will come to an end on 16 May 2021.

How to Carry Out Right to Work Checks After 16 May

From 17 May 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.

What About the COVID-19 Roadmap?

The ending of these arrangements on 17 May seems to contradict the Government's roadmap out of lockdown. While some easing of restrictions is scheduled for 17 May, the roadmap indicates that employees should still be working from home where they can. Indeed, working from home where possible will continue to be the recommendation until at least 21 June 2021.

Many employers will therefore be wondering why this change to the right to work requirements is being introduced now.

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 16 May 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.