Under the Government’s current code of practice for right to work checks (“RTW”), it is possible to conduct a fully compliant RTW on all new starters without seeing the individual face to face. During times of a pandemic such as coronavirus, where working from home policies apply, we advise following the procedures outlined below.
A fully compliant RTW can be done in one of two ways, without face to face contact.

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1. Remote RTW check for an individual holding a Biometrics Residence Permit (“BRP”) or Pre-Settled/Settled Status under the EEA Settled Status scheme

For anyone who has a BRP card or Settled Status under the new system for EEA nationals, it is possible to conduct an online RTW. You would do that by following the prompts at https://www.gov.uk/prove-right-to-work.

First, the individual accesses their online immigration record via the link. They will need to follow the prompts to create a one-time use share code for an employer RTW. They should then provide you with the share code to use within 30 days of its creation. Please be aware that the Home Office will have a clear audit record of you using this code and exactly when you did so. Thus it is very important you do so correctly, prior to them actually starting work.

When you login with the code, it will show you the individual’s profile along with what employment they are allowed to undertake on their visa status. You should check the photograph depicted as well as any employment restrictions that are advised on their record. You should also view the person via a live video call eg skype or facetime, in order to confirm they are the person depicted, just as you would for a standard face to face RTW.

Please ensure that you keep a copy of this check. We would suggest a screenshot of the video call open concurrently with the online RTW screen open with their details. You can save this as a hard or soft copy but it should be in an unalterable format, dated and clearly signed or marked by the person taking the check so that it is clear they are an authorised and appropriate employee of the company, taking the check on or before the individual’s first day of employment (in the usual way for a valid RTW).

2. Remote RTW check for everyone else

For those that do not hold a BRP or settled status as above, for example, British nationals, you can conduct the RTW by having them courier you their original current passport and then checking its validity etc in the usual way but via a video call. The same records must be retained ie certified dated copies either in hard copy or soft copy. The person conducting the check must see the original document to verify it against the video call of the person. You should continue to bear in mind that only those documents on the Home Office’s RTW checklist are ever acceptable. This can be found at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/774286/Right_to_Work_Checklist.pdf

We would suggest that the employee who is responsible for taking the check, is the one to arrange the courier for the documents so that they can protect their personal home address information. Care should also be taken to ensure that only secure and recorded methods of delivery are used given the personal nature of the documents being transported.

Is there any discretion around this given the current pandemic?

Unfortunately, under the current RTW guidance, only the above RTW are considered compliant. In practice, that means that any other type of RTW would not satisfy the requirements to form a statutory defence against the offence of employing someone to work illegally.

The Home Office do have additional guidance for leniency around immigration requirements as a result of the coronavirus situation but at present, this does not cover RTW. Whilst they may expand the guidance to cover it in the future (and we have requested further guidance from them on this point already), we would advise caution for the time-being.

Employing someone to work illegally is generally a strict liability offence 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 should reasonably have known the individual was working illegally, the penalty rises to an unlimited fine and up to five years imprisonment. Thus it is 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 offence, it is possible to reduce the penalty to £0. However, if it is not a first offence, the penalty can usually not be reduced to less than £5,000 per illegal worker. It cannot be guaranteed that they would extend their discretion to reduce the penalties for reasons beyond those listed. 

What if a fully compliant check is not possible?

If it becomes impossible to conduct a RTW in a fully compliant way, for example, if couriers are unavailable, you will need to make a business decision on what level risk you are satisfied with.

Because the penalty only becomes applicable should someone later be found to be working illegally, you will not always need to rely on a RTW. Therefore, in some circumstances, it may be reasonable to assume that the individual does have a right to work and cannot be working illegally in the UK. This is a difficult assessment to make however and we would suggest only doing so with the advice of an immigration specialist lawyer.

In addition to the offence of employing someone to work illegally, as outlined above, any penalties for doing so may also affect the company’s Sponsor Licence. It is therefore very important to take all practical steps to ensure that the new employee does indeed have the RTW.

You should ensure you do everything you can to ascertain their RTW and retain records of doing so and then ensure that a fully compliant RTW is done on the first day back to normal face to face working arrangements.

We believe that this should at least form a partial RTW which may be taken into account by the Home Office when assessing compliant at a later date.

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

Related Item(s): Covid 19 – Coronavirus, Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Naomi Hanrahan-Soar,