Introduction
Key points from latest guidance and situation
Adjusted procedure during covid-19
Starting work with sponsored worker application pending
Checks for those unable to leave United Kingdom
What if someone is employed to work illegally?
Other important points during covid-19


Introduction

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.

The options and procedures are summarised below, and some general points to be aware of while the adjusted procedure remains in place are highlighted.

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.

Remote RTW check for individuals eligible to use 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, which can be found on the government webpage "Prove your right to work to an employer".(1)

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 on the government webpage "View and prove your immigration status".(2)

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

The employer's link on the government webpage "View a job applicant's right to work details"(3) must be used to login with the code. Viewing the individual's record via their access point is not sufficient.

Once logged in, the individual's profile may be viewed, along with what employment they are allowed to undertake on their visa status. If the person has an outstanding immigration application (eg, 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(4) and ask for their record to be amended to show their existing immigration permission.

The photograph depicted needs to be checked, as well as any employment restrictions that are advised on their record. It is advisable to log in while the person is present via a live video call so that it is possible to confirm they are the person shown on their online profile, just as in a standard face-to-face RTW.

Ensure that a copy of the online check is kept. Taking a screenshot of the video call open concurrently with the online RTW screen showing the person's details is suggested as best practice, but this is not essential. It may be saved 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).

Remote RTW check for everyone else
For those who do not have access to the online RTW process, for example, British and Irish citizens, the RTW can be conducted if their original evidence of right to work is available, eg, their current passport, and by 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 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 covid-19

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

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

  • ask the prospective or existing employee to provide a scan or photo of their RTW documents;
  • hold a video call with the person and ask them to hold up their original documents;
  • check the documents shown in the call against the scan/photo received (it is also suggested that these are checked against the physical appearance of the person on the call and that a screenshot of the video call and the person holding up their documents is taken); and
  • 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, contact the Employer Checking Service(5) 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.

The covid-19 adjusted procedure may not be chosen 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 their employment to be ended.

Starting work with 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; or
  • 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 that would normally be kept as part of recordkeeping duties as a sponsor (ensuring these documents are in line with the information on the assigned CoS), it is advisable to keep the following documentation:

  • a printout of the covid-19 advice for UK visa applicants and temporary residents(6) on the government website, as it appears on the date the person is due to start work;
  • a printout 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); and
  • agreement from the person that they will be in contact as soon as they receive any communication from the Home Office about the validity or outcome of their application.

As a back-up, reminders should be scheduled to follow up with the applicant in the same way as with any other employee with a pending immigration application.

The Employer Checking Service should also be contacted and a Positive Verification Notice requested; however, a negative notice should not be taken as conclusive evidence that 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, the Home Office should be contacted to explain the situation and a request to issue a Positive Verification Notice should be made.

A full right to RTW should be carried out as soon as possible once the person has their new BRP details, adding 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, the worker's sponsorship must end and they must stop working immediately. Employment advice for this scenario should be sought.

Checks for those unable to leave United Kingdom

The exceptional assurance process is an arrangement the Home Office has put in place for those who intend to leave the United Kingdom but are unable to do so before the expiry of their immigration permission due to factors relating to the pandemic.(7)

In some cases it will be preferable for any employees who are unable to depart the United Kingdom but who want to continue to be able to work to consider making an application for further leave to remain before their leave expires. 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 United Kingdom by the date given.

A person who has exceptional assurance will be able to apply for permission to stay in the United Kingdom 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, it is suggested to contact the Employer Checking Service to request a Positive Verification Notice.

It is also suggested to copy and retain:

  • the Home Office's covid-19 guidance for applicants,(8) as at the date of the check; and
  • the correspondence between the applicant and the Home Office confirming submission of the request for exceptional assurance and its grant.

The employee should be asked to keep in contact regarding the progress of any outstanding request for exceptional assurance and should be followed up periodically, eg fortnightly; also for further confirmation of their status ahead of the expiry date of the exceptional assurance once granted.

What if someone is employed 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 an employer knew or should reasonably have known that 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 does 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:

  • where the employer has self-reported the suspicion of illegal working;
  • has the employer conducted a partial RTW;
  • the employer has cooperated with the Home Office on the investigation; and/or
  • the employer 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 for which they have been hired.

Other important points during covid-19

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 using the adjusted procedure.(9) 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.

It is wise to be cautious not to make arrangements that a person 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 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; or
  • 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 while the adjusted checks are operational. However, where an individual is found not to have appropriate status to work, it will be necessary to take steps to terminate their employment.

For further information on this topic please contact Andrew Osborne, Supinder Singh Sian or Jessica Courtney at Lewis Silkin by telephone (+44 20 7074 8000‚Äč) or email ([email protected], [email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.

Endnotes

(1) Further information is available here.

(2) Further information is available here.

(3) Further information is available here.

(4) Further information is available here.

(5) Further information is available here.

(6) Further information is available here.

(7) Further information is available here.

(8) Further information is available here.

(9) Further information is available here.