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. Where this is not possible during the COVID-19 pandemic, the Home Office has instituted a temporary adjusted procedure, which must be backed up by retrospective checks in due course. We have summarised the options and procedures below, as well as highlighting some general points to be aware of during the pandemic.

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(Updated as of 15 October 2020)

Key points from latest guidance and situation

We have included additional text on conducting right to work checks for individuals who have applied for or have been granted exceptional assurance.

We have also noted that we have asked the Home Office to consider the situation at the time the adjusted process is brought to an end, as the current policy for retrospective checks may be a significant burden for larger employers who have carried out many adjusted checks. Accordingly, they are considering extending this concession and allowing video call checks to proceed into the new immigration system. This is still under consideration however, so it is important to continue to retain complete records of those checked in this way, in case re-checking is required in the future. .

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

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

For anyone who has a BRP card or status under the EUSS, it is possible to conduct an online RTW while the employee is present via a video call. The employee must give their permission for an online RTW to be carried out. If permission is not given, a manual check must be undertaken instead.

First, the individual accesses their online immigration record at https://www.gov.uk/prove-right-to-work. 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.

You must use the employer’s link at https://www.gov.uk/view-right-to-work to login with the code. Viewing the individual’s record 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. 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 eg Skype or FaceTime, in order to 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. 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 who do not hold a BRP card or status under the EUSS as above, for example, British citizens, you can conduct the RTW if you are in possession of their original evidence of right to work, eg their 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. This option may prove not to be feasible in some cases currently due to logistical and security issues relating to the movement of original documents.

Temporary adjusted procedure during the COVID-19 pandemic

On 30 March 2020, the Home Office published an adjusted procedure to be used as a work-around for the time-being if carrying out a fully compliant RTW is not possible.

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

1. Ask the prospective or existing employee to provide you with a scan or photo of their right to work documents
2. Hold a video call with the person and ask them to hold up their original documents
3. 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)
4. Mark the copies with the printed name of the person conducting the check, their signature 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 should retain a log of all RTWs conducted using the adjusted procedure. This is because you will need to carry out a retrospective RTW for all employees for whom you have used the adjusted procedure. This must be done no later than eight weeks after the Home Office announces that the adjusted procedure has ended. It has now been a considerable period of time since these measures have been implemented and it is clear that for some larger employers, carrying out retrospective checks will be a significant burden. We have asked the Home Office to take this into account when ending the adjusted process, and issuing revised guidance as appropriate. We will be monitoring for further announcements over the coming months and will advise clients when they happen.

Before the Home Office announces the adjusted procedure has ended, you may opt to undertake retrospective checks, or 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 socially distanced face-to-face check at the workplace. There is no requirement to do this, it will just minimise the number of retrospective checks you need to do within the eight weeks after the adjusted procedure ends. 

When completing a retrospective RTW, you should certify a copy of the original documents in the usual way, including the additional wording ‘The individual’s contract commenced on [date] The prescribed right to work check was undertaken on [date of retrospective check] due to COVID-19’.

Both checks must be retained on file for record-keeping compliance purposes.

If, at the stage of the retrospective check it comes to light that a person you have employed does not have the right to work, the Home Office expects you to end their employment.

Right to work checks for those covered by the COVID-19 concession for Tier 2 and 5 applicants

On 14 April 2020 the Home Office announced a concession enabling Tier 2 or 5 applicants to start work with their sponsoring employer ahead of their application being approved, provided certain conditions are met. Full details of the concession are outlined here.

However, the Home Office has not issued corresponding guidance covering right to work requirements where the concession is 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 the COVID-19 advice for UK visa applicants and temporary residents on GOV.UK, as it appears on the date the person is due to start work

• 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 work check 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 [Tier 2/Tier 5] application for further leave to remain, published by the Home Office on 14 April 2020. The prescribed right to work check was undertaken on [insert date] following the availability of [his/her] BRP.”

Practically, you may prefer to use the online right to work check option if there are still issues with reviewing original documents at the time the person receives their BRP details. This would avoid having to use the COVID-19 adjusted right to work process and then having to do a further check once the adjusted procedure has ended and the original BRP can be presented to you.

In the event the application is not successful, the Home Office expects you to stop sponsoring the person and for them to stop working for you. You should also consider seeking employment law advice in this situation.

 

Right to work checks for those covered by the COVID-19 extensions for those who are unable to leave the UK

For those who have received confirmation of an extension from the Home Office by email after making an application for this either by contacting the Coronavirus Immigration Team by email or through using the Home Office’s online form, we would suggest that you ask the employee to email the Home Office at CIH@homeoffice.gov.uk and to request for a further BRP to be issued. Once issued, a check using the BRP can be carried out.

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 who were unable to do so before the end of the grace period on 31 August 2020, or before the expiry of their leave in the case of leave due to expire between 1 September 2020 and 31 October 2020.

In most 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.

For those who choose to use the exceptional assurance process, the Home Office has confirmed in an update to its guidance on 16 September 2020 that those who are granted exceptional assurance are permitted to work, study or rent private accommodation in the UK if their previous immigration conditions allowed this. There is no mention of whether this will also be the case while a request for exceptional assurance is under consideration, however it would be the most sensible approach. We have asked the Home Office for clarification on this point.

Pending being able to complete a check, you should retain a copy of the email the employee received from the Home Office confirming the extension. If the person originally received confirmation of an extension to 31 May 2020, you should also retain a print-out of the COVID-19 advice for UK visa applicants and temporary residents on GOV.UK as at the date of the check. This webpage should confirm that a further extension was automatically granted to 31 July 2020. It should also confirm that a further grace period applies between 1 August 2020 and 31 August 2020 for individuals whose leave was automatically extended to 31 July 2020, as well as those whose leave is due to expire during August 2020.

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 Home Office’s COVID-19 guidance for applicants, as at the date of the check

• 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. 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:

1. where the employer has self-reported the suspicion of illegal working;
2. has conducted a partial RTW;
3. has cooperated with the Home Office on the investigation; and/or
4. 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 temporary adjusted procedure. The list can be foundhere. The situation has been complicated by the introduction of the concession for Tier 2 and 5 migrants, and the Home Office has not issued any specific guidance to cover these people.

You should also be cautious not to make arrangements during the coronavirus pandemic 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 Tier 2 or 5 applicants (this could be an issue currently where you are trying to reallocate staff due to changed business needs during the pandemic)

• Allowing a Tier 4 student to work above the maximum number of hours a week they are allowed to work during term-time

• Allowing a Tier 4 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. Retrospective checks should be carried out in line with the Home Office’s guidance and paying careful attention to ensure the employee is the person depicted in the original documents they present.  

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

(Updated as of 15 October 2020)

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

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