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Global HR Lawyers

Carrying out adjusted right to work checks up to 5 April 2022

27 September 2021

Under the Home Office’s current guidance for right to work checks (RTW), it is possible to conduct a fully compliant initial or follow-up RTW without seeing the individual face-to-face. To cover practical difficulties arising during the COVID-19 pandemic, mainly where the checker cannot easily gain access to original documents required for a manual RTW, the Home Office has instituted a temporary adjusted procedure.

We have summarised the options and procedures below, as well as highlighting some general points to be aware of while the adjusted procedure remains in place.

Key points from latest guidance and situation

On 30 March 2020 the Home Office implemented adjusted procedures for conducting a RTW check in light of the COVID-19 pandemic. These were due to end on 31 August 2021 but have been extended to 5 April 2022, following a last-minute announcement on 26 August 2021. The continuation of adjusted checks is helpful for employers and employees because a significant number of HR staff and other employees continue to work from home, and employees are reluctant to part with their valuable physical identity documents where these are required.

What is different about this extended deadline is that in the interim, the Home Office plans to develop a new digital solution to include those who cannot use the existing online RTW system. This will include British and Irish citizens. It is likely that if the solution is not in place by the 5 April 2022 deadline, it will be extended again.

A fully compliant RTW can be done in one of two ways, without face-to-face contact.

1. Remote RTW check for individuals who are eligible to use the Home Office’s online RTW services

For employees who are able to access the Home Office’s online RTW services, it is possible to conduct a compliant RTW while they are present via a video call. The employee must give their permission for an online RTW to be carried out. If the individual has physical documents, they can opt for a manual RTW rather than using the online service, however in practice this is relatively rare.

Individuals who have been issued with a biometric residence permit (BRP) or biometric residence card (BRC) number should access their online immigration record can be found at Prove your right to work to an employer (GOV.UK).

Those who have settled or pre-settled status under the EU Settlement Scheme, or who received an eVisa after using the UK Immigration ID app should access it at View and prove your immigration status (GOV.UK).

Irrespective of which online access point an individual uses, they will need to follow the prompts to create a one-time use share code and provide you with this, either as an email generated through the GOV.UK website or by them taking a note of the share code and advising you of it. The share code must be used within 30 days of its creation. Please be aware that the Home Office will have a clear audit record of the time and date you use the code to carry out the RTW. To ensure you are covered by the excuse against having to pay a civil penalty for illegal working, you must make sure you do the online check before the person actually starts work, or before their current immigration permission expires if it is a repeat check.

You must use the employer’s link at View a job applicant's right to work details (GOV.UK) to login with the code. Viewing the individual’s record via their access point is not sufficient.

Once you have logged in, you will be able to view the individual’s profile along with what employment they are allowed to undertake on their visa status. If the person has an outstanding immigration application (e.g. to move from pre-settled status to settled status), the online system may only show the outstanding application rather than the expiry of the person’s existing immigration permission. If this happens, the person should contact the Home Office and ask for their record to be amended to show their existing immigration permission.

You should check the photograph depicted as well as any employment restrictions that are advised on their record. You should login while the person is present via a live video call so you can confirm they are the person depicted on their online profile, just as you would for a standard face-to-face RTW.

Please ensure that you keep a copy of the online check. We would suggest a screenshot of the video call open concurrently with the online RTW screen showing the person’s details as best practice, but this is not essential. You can save this as a hard or soft copy but it should be in an unalterable format, dated and clearly identifying the person taking the check so that it is clear they are an authorised and appropriate employee of the employing business, taking the check on or before the individual’s first day of employment, or, for a repeat check, before the expiry of the person’s existing immigration permission (in the usual way for a valid RTW).

2. Remote RTW check for everyone else

For those who do not have access to the online RTW process, for example, British and Irish citizens, you can conduct the RTW if you are in possession of their original evidence of right to work, e.g. their current passport, and then checking its validity etc in the usual way but via a video call. The same records must be retained i.e. certified dated copies either in hard copy or soft copy.

The person conducting the check must see the original document to check it appears to be genuine and unaltered, and to verify the image on the document (if there is one) against the appearance of the person on the video call. This option may not be preferred or feasible given the logistical issues involved where one or more parties are working from home or where there is a reluctance to courier or drop off original documents for checking.

Adjusted procedure during the COVID-19 pandemic

Following the Home Office announcement to extend the adjusted RTW procedure until 5 April 2022, employers can continue for the time-being to carry out adjusted RTW checks in a way that takes into account the ongoing impacts of the COVID-19 pandemic.

Under the adjusted procedure, employers should take the following steps:

a. Ask the prospective or existing employee to provide you with a scan or photo of their RTW documents

b. Hold a video call with the person and ask them to hold up their original documents

c. Check the documents shown in the call against the scan/photo received (we would also suggest that you check these against the physical appearance of the person on the call and that you take a screenshot of the video call and the person holding up their documents)

d. Mark the copies with the printed name of the person conducting the check and the wording ‘adjusted check undertaken on [date] due to COVID-19’

If the person cannot show their documents, for example because they have an outstanding application with the Home Office, you should contact the Employer Checking Service and obtain a Positive Verification Notice (PVN). This will provide a statutory excuse for six months. After this time a further PVN will be required unless the worker is able to satisfy a fully compliant RTW or a RTW under the adjusted procedure in the interim.

You may choose not to use the COVID-19 adjusted procedure where it is operationally feasible to do so. This might be possible where employees who undertake RTWs have returned to the workplace and the individuals for whom a retrospective check is required either agree to courier their original documents to the workplace, or to complete a face-to-face check at the workplace.

Any individual employed between 30 March 2020 and 5 April 2022 will not be subject to a retrospective manual RTW check where the adjusted procedure was used. However, if it comes to light that an individual employed during the period when an adjusted RTW check was used does not in fact have the right to work, the Home Office will expect you to end their employment.

Right to work checks for those covered by the COVID-19 concession for starting work with a sponsored worker application pending

Since 14 April 2020, the Home Office has provided a concession relating to certain sponsored workers with applications pending. This concession currently only covers those who have applied for a Health and Care visa, however it previously also covered any individual whose Certificate of Sponsorship was assigned under the Skilled Worker, Health and Care Worker, Intra-Company Transfer, Tier 2 or Tier 5 categories on or before 31 December 2020.

The concession permits an individual to commence work before a decision has been reached on their application in the following circumstances:

  • A certificate of sponsorship has been assigned
  • An application has been submitted before the current visa has expired
  • The job start date is the same as on the certificate of sponsorship

The Home Office has not issued corresponding guidance covering RTW requirements where the concession has been used.

In the absence of a published policy from the Home Office, in addition to the documentation you would normally keep as part of your recordkeeping duties as a sponsor (ensuring these documents are in line with the information on the assigned CoS), we would suggest the following documentation is kept:

  • Print-out of proof of the date the person’s pending application was submitted (this date must be before the date they start work in the role the application relates to)
  • Agreement from the person that they will notify you as soon as they receive any communication from the Home Office about the validity or outcome of their application

As a back-up you should schedule reminders to follow up with the applicant in the same way as you would for any other employee with a pending immigration application.

You should also contact the Employer Checking Service and request a Positive Verification Notice, however a negative notice should not be taken as conclusive evidence the person does not have the right to work under the concession. This is because the Home Office’s internal systems may not have been updated to recognise the right to work flowing from the concession. If this happens, you should contact the Home Office to explain the situation and ask for a Positive Verification Notice to be issued.

You should carry out a full right to RTW as soon as possible once the person has their new BRP details, adding a wording such as “the individual’s contract commenced on [insert date] under the COVID-19 concession for individuals with a pending sponsored worker application for further leave to remain. The prescribed right to work check was undertaken on [insert date] following the availability of [his/her] BRP.”

In the event of the visa application being rejected, you must stop sponsoring the worker and they must stop working for you immediately. You should seek employment advice for this scenario.

Right to work checks for those who are unable to leave the UK and have applied for or have been granted exceptional assurance

The exceptional assurance process is an arrangement the Home Office has put in place for those who intend to leave the UK but are unable to do so before the expiry of their immigration permission due to factors relating to the pandemic. The current policy is available here.

In some cases it will be preferable for any employees who are unable to depart the UK but who want to continue to be able to work to consider making an application for further leave to remain before their leave expires. We are able to advise on the options for this as needed.

Where exceptional assurance has been requested or successfully granted, it will provide short term protection against any adverse action. If previous immigration conditions allowed an individual to work, study or rent, then they may continue to do so during the time the request for exceptional assurance is outstanding, and during the period of exceptional assurance once granted.

An individual will have to reapply for exceptional assurance where their circumstances have changed or they are unable to leave the UK by the date given.

A person who has exceptional assurance will be able to apply for permission to stay in the UK before it expires. They must meet the requirements for the route they wish to apply under and the route must be one that allows an in-country application to be made

For those employees who have requested or have been granted exceptional assurance, we would suggest that you contact the Employer Checking Service to request a Positive Verification Notice.

We would also suggest that you copy and retain:

  • The correspondence between the applicant and the Home Office confirming submission of the request for exceptional assurance and its grant

You should ask the employee to keep you updated on the progress of any outstanding request for exceptional assurance and set a reminder to follow up with the person periodically, eg fortnightly. You should also set a reminder for further confirmation of their status ahead of the expiry date of the exceptional assurance once granted.

What happens if we employ someone to work illegally?

Employing someone to work illegally will generally make an employer liable for a civil penalty and a fully compliant RTW is the only way to be sure of reducing the £20,000 penalty to £0. Should the Home Office deem that you knew or should reasonably have known the individual was working illegally, then this would be dealt with as a criminal matter, which can attract an unlimited fine and up to five years imprisonment. It is therefore crucial to have robust systems in place for compliance.

The Home Office do have the option to reduce the penalty where there are mitigating factors but no fully compliant RTW. Usually, they would reduce the penalty by £5,000 for each mitigating factor from the below list of four accepted mitigating factors:

a. where the employer has self-reported the suspicion of illegal working;

b. has conducted a partial RTW;

c. has cooperated with the Home Office on the investigation; and/or

d. has generally robust systems in place for the prevention of illegal working.

Where it is a first breach, it is possible to reduce the penalty to £0. However, if it is not a first breach, the penalty usually cannot be reduced to less than £5,000 per illegal worker. It cannot be guaranteed that the Home Office would extend its discretion to reduce the penalties for reasons beyond those listed.

Any civil or criminal sanctions imposed may also affect an employer’s sponsor licence. It is therefore very important to take all practical steps to ensure that all employees have the necessary right to work in the role they have been hired for.

Other important points to note during the COVID-19 pandemic

You should continue to bear in mind that according to the Home Office’s current published guidance, only those documents on the Home Office’s RTW checklist are acceptable as evidence of right to work, even if you are using the adjusted procedure. The list can be found here. The situation has been complicated by the introduction of the concessions for sponsored workers and those with exceptional assurance, and the Home Office has not issued any specific guidance to cover these people.

You should also be cautious not to make arrangements that you may be held to know, or to have reasonable cause to believe, constitute illegal working.

Less obvious examples of illegal working that may occur include:

  • Employing a sponsored employee in a role other than the one they have been sponsored to carry out, unless they meet the requirements of the published concession for sponsored worker applicants (this could be an issue currently where you are trying to reallocate staff due to changed business needs during the pandemic)
  • Allowing a Student to work above the maximum number of hours a week they are allowed to work during term-time
  • Allowing a Student to work at all if it comes to light that they have dropped out of their studies

Lastly, it will be important to be alive to the possibility of impersonation in the current circumstances, particularly if the copies of documents or image on the video call are not clear. Caution should be taken when carrying out RTW checks, as retrospective checks are not required for those employed during the duration the adjusted checks are operational. However, where an individual is found not to have appropriate status to work, you will have to take steps to terminate their employment.

Please contact our immigration team if you have any questions or require further assistance.

 

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