Home Office publish update on Right to Work Checks

Right to Work Checks from 1 July

The Home Office has published its ‘DRAFT Code of practice on preventing illegal working’ which covers the changes to right to work check requirements for employers effective from 1 July 2021. We expect the final version to be published soon but employers should be aware now of the new Code of Practice coming into effect and that it will apply to all new and follow-up right to work checks from 1 July onwards.

All employers must ensure they carry out a right work check on every employee on or before first day of employment. Failure to carry out a check in the prescribed manner can lead to a civil penalty of up to £20,000 per illegal worker, or in more serious cases, criminal prosecution. Those employers who hold a Sponsor Licence are also expected to carry out right to work checks as part of their sponsor duties and obligations – failure to do so, or evidence of inadequate processes may lead to downgrading, suspension or even revocation of your Sponsor Licence.

What’s changed?

With the EU Settlement Scheme ending on 30 June 2021, the draft Code of Practice sets out the new list of documents employers can accept from EEA/Swiss nationals  from 1 July 2021. If employers are carrying out a face to face check, they must carry out a check on a document from either ‘List A’ or ‘List B’.

If an employer performs a check on a List A document, they will establish a statutory excuse for the duration of that employee’s employment – there will therefore be no requirement for a follow-up check. List A now reflects an employer can accept a current or expired British or Irish passport – EEA passports and ID cards have been removed. Nationals of all other countries must present a current BRP card and passport to confirm their right to remain in the UK indefinitely (no change from previous guidance).

Documents under List B are for employees who are on a time limited visa and where the employer will need to carry out a follow-up right tot work check. This list remains largely unchanged but there have been several additional documents for EEA / Swiss nationals including a Frontier Worker Permit.

Online right to work checks – the new norm

EEA nationals who have applied under the EU Settlement Scheme will have received digital confirmation of either Pre-Settled Status or Settled Status. The Home Office have been very clear that the future will see more digital visas being introduced – we already have the EUSS, Skilled Worker for EEA nationals, British National Overseas (BNO) visa and Frontier Worker permit.

Since early 2019, employers are able to use the Government’s online right to work check tool to check whether an individual has permission to live and work in the UK – this often saves the need to carry out a face to face check, which has been ideal for businesses during the Covid-19 pandemic and office closures etc. An employer can carry out an online right to work check if an individual holds one of the following:

• A current biometric residence permit.
• A current biometric residence card; or
• Status issued digitally under the EU Settlement Scheme;
• Status issued digitally under the points-based immigration system;
• BNO visa; or
• Frontier worker permits.

Carrying out an online right tot work check is a straight forward process – the individual ‘shares their code’ with the employer, the employer enters the ‘share code’ online and the system performs an automatic check on the individuals details and confirms their eligibility to work in the UK. The employer must then retain confirmation of the check on the employee’s personnel file and record any temporary visa expiry date on their tracking system.

Given most EEA/Swiss nationals will have a ‘share code’ confirming their status under the EUSS or if on a Skilled Worker visa, and most non-EEA nationals will have a current BRP card, employers should be able to carry out an online right to work check on this group of people – avoiding the need for a face to face check.

1 September – new end date of temporary Covid-19 adjustments to right to work checks

It comes as no surprise that the Home Office have for a third time communicated a new end date to the temporary Covid-19 right to work checks, which have been in place since March 2020. As a result of the Covid-19 pandemic, the Home Office  introduced temporary adjustments to right to work checks which allowed employers to carry out right to work checks via video call – for full details on how to do this, please read our previous article here.

In light of the Government’s recent announcement that step four of the lockdown roadmap will be delayed until 19 July 2021, the Home Office confirmed yesterday that the temporary Covid-19 right to work check adjustments will now extend until 1 September 2021, and will therefore not be ending on 21 June 2021 as previously communicated.  This will be welcomed news to our clients and contacts, many of whom have been in touch with our department to raise concerns given some businesses will not be returning to the office until at least September this year.

The Government will be updating the information on the gov.uk webpage in the coming days to confirm the new end date of the temporary right to work adjustments.

Next steps – update processes and train staff

With the proposed changes to both List A and List B documents, employers should consider updating their onboarding checklists/processes to reflect the list of acceptable documents that can be accepted when carrying out face to face right to work checks from 1 July 2021. Employers should also ensure HR/recruitment /on-boarding teams are updated on the latest right to work changes and the steps to follow when carrying out either a face to face check or an online right to  work check.