Member Article

Employers can face a civil penalty under the Immigration, Asylum and Nationality Act 2006 (“the Act”) of up to £20,000 per illegal worker for failing to carry out the prescribed right to work document checks. It is a criminal offence to knowingly employ anyone who does not have the right to work in the UK or where an employer had ‘reasonable cause to believe’ they did not have the right to work in the UK.

Employers must ordinarily carry out right to work checks in accordance with the Right to Work Checks: An Employer’s Guide (the Employer’s Guide).

COVID-19 adjusted right to work checks

• In response to the Coronavirus pandemic, the Government introduced temporary changes on how employers were permitted to carry out right to work checks on 30 March 2020 and this included:
• as opposed to physically seeing the original documents, employer are able to ask for a scanned copy or a photo of the individual’s original documents to be sent using email or a mobile app;
• being able to arrange a video call with the individual during which the individual will be asked to hold up the original document to the camera. This should be checked against the digital copy of the document. The record of the right to work check should record the date in which this check occurred and should be marked “adjusted check undertaken on [insert date] due to COVID-19”.
• If the individual has:
  • a Biometric Residence Permit;
  • a Biometric Residence Card; or
  • has been granted status under either:
    • the EU Settlement Scheme; or
    • the points-based immigration system
      
      

  provided you obtain the individual’s permission to view their details you can use the online right to work checking service during the video call.

Full details of adjustments were set out in the COVID-19 adjusted right to work checks guidance. Please note there was no adjustment to the prescribed documents set out in the Employer’s Guide.

End of COVID-19 Adjusted Right To Work Checks on 16 May 2021

The Government has now announced that the COVID-19 adjusted right to work checks are due to end on 16 May 2021. From the 17 May 2021, employers must return to carrying out the prescribed document checks in accordance with the Employer’s Guide.

There may be some circumstances where individuals are unable to evidence their right to work, please seek advice accordingly to ensure that such applicants are not potentially being discriminated against.

Will I have to undertake retrospective right to work checks for those individuals whose right to work checks were performed using the COVID-19 adjusted measures?

No, despite initial suggestions that there would be a requirement to undertake retrospective right to work checks within 8 weeks of the temporary changes ending the Government has confirmed in the announcement that there is no requirement to carry out retrospective right to work checks on those whose checks were carried out using the COVID-19 adjusted right to work checks – to reflect the length of time the adjustments had been in place and to continue to support business.

Provided right to work checks undertaken between 30 March 2020 – 16 May 2021 have been conducted in the prescribed manner set out in the Employer’s Guide or in accordance with the COVID-19 adjusted checks guidance employers will maintain a defence against a civil penalty.