As an employer, it is your responsibility to prevent illegal working in the UK by ensuring that your employees have the right to work here.
You can satisfy this obligation by conducting Right to Work checks prior to employing any individual, whether they are from overseas or they are free from UK immigration control. You must also conduct a follow up check, if necessary, to ensure that the relevant employee is still qualified to carry out the job role on the basis of their immigration status.
Flexibility over Right to Work checks will remain in place until 5 April 2022
Due to the COVID-19 pandemic, the Home Office has put in place temporary provisions to allow for manual Right to Work checks to be conducted remotely. The temporary provisions were first introduced in 30 March 2020 and have now been extended to 5 April 2022.
As an employer, you are required to carry out adequate Right to Work checks on employees, even if they are working remotely. The adjustments to checks are as follows:
- Checks can continue to be carried out over video call;
- Employees are not required to provide their original documents, and are permitted to send copies by email or via a mobile app;
- The employer can continue to use the Employer Checking Service if an employee is unable to provide any of the relevant documents;
- The employer must record the date the check was made and mark it as “adjusted check undertaken on [insert date] due to COVID-19”.
In addition to the above, we recommend for completeness that a screenshot of the COVID-19 concession from the Government website is also kept on file from the day that check was conducted.
Further information on how to carry out the above checks can be found in Gherson’s Right to Work check blog.
If the checks are conducted correctly, as an employer, you will usually have a statutory excuse against liability for illegal working.
It remains an offence to knowingly employ an individual who does not have the right to work in the UK. Therefore, in the event that you are found to have employed an individual who is restricted from carrying out their job role on the basis of their immigration status, having conducted the correct checks can protect you.
As restrictions start to ease, it is expected that the Home Office will recommence rigorous Right to Work compliance checks.
Changes to Right to Work checks for EU, EEA or Swiss nationals from 1 July 2021
As of 1 July 2021, any EU, EEA or Swiss national commencing employment in the UK have to demonstrate that they have the right to work in the UK, in the same way as other foreign nationals would be required to do. They can no longer rely on their EU, EEA or Swiss passports or national identity cards to prove their right to work here.
Please refer to our previous blog New guidance on Right to Work checks released 1 July 2021 which provides further information in this regard.
How Gherson can assist
Gherson has over 30 years of experience in assisting with all aspects of UK immigration law and is monitoring the impact of COVID-19 on all immigration issues closely. We have a specialist corporate immigration team who service the needs of a large number of companies.
If you would like to speak to a member of our corporate immigration team in respect of any of the issues raised in this blog, please do not hesitate to contact us for advice, send us an e-mail, or alternatively, follow us on Twitter, Facebook, or LinkedIn to stay-up-to-date.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
©Gherson 2021