Immigration Law Partner Spencer West LLP
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Right to work checks in the not-so-remote future

14th Jun 2021
Immigration Law Partner Spencer West LLP
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This blog post discusses new Government right to work checking policies which came into force on 1 July 2021. Samar Shams originally published this blog on 14 June 2021 and updated it on 3 July 2021. Samar discusses the following Government publications:

Together, these documents set out right to work check requirements for checks undertaken from 1 July 2021.

Conducting right to work checks according to the government guidance affords employers a statutory excuse from civil penalty should a worker turn out to be working illegally. Employers who are also sponsor licence holders are required to conduct right to work checks as part of their sponsor duties.

There is no general legal obligation on UK employers to conduct right to work checks and employers should be mindful of this when developing their right to work checking policies and conducting checks.

EEA nationals

Evidence of the right to work

Since 1 July 2021, EEA nationals will need to evidence status under the UK Immigration Rules authorising work. EEA nationals’ passports or national ID cards are no longer sufficient documentation of the right to work in the UK.

Republic of Ireland passports are still acceptable right to work documentation, even if they are expired.

EEA nationals with status under the EU Settlement Scheme can only evidence their status digitally. EEA nationals who have used the ‘UK Immigration: ID Check’ app to apply for a visa under the Immigration Rules, e.g. a Skilled Worker or Intra-Company Transfer visa, can also evidence their status digitally. See ‘Online right to work checks’ below for more information on digital evidence of status.

Some EEA nationals will have physical documentation of their right to work, e.g. an endorsement in their passport; in these cases, employers should verify that the physical documents presented are on one of the government’s list of acceptable documents.

An EEA national might also hold a frontier worker permit, which allows them to work in the UK until the date of expiry; frontier worker permits are usually evidenced digitally.

Retrospective checks and the temporary policy for late applications to the EU Settlement Scheme

Employers are not required to conduct ‘retrospective checks’, from 1 July 2021, on EEA nationals whose right to work they have checked before that date in line with the Home Office code of practice and guidance in effect at the time of the check. However, employers may choose to conduct retrospective checks.

If an employer conducts a retrospective check on an EEA national employed before 1 July 2021, and that employee does not produce documentation from the acceptable lists and has not yet applied to the EU Settlement Scheme, the employer might be able to take advantage of a temporary policy in place until 31 December 2021, set out in the employer’s guide to right to work checks.

The employer should advise the employee to make a late application to the EU Settlement Scheme.

The Home Office might accept that there are reasonable grounds for an application to be made late. The later an application, the less likely the grounds for applying late will be accepted as reasonable. Home Office guidance to its EU Settlement Scheme caseworkers provides examples of when they might accept lateness grounds as reasonable from an adult, including the following:

  • They have lived in the UK for a significant period of time and having done so did not realise they must still secure status under the EU Settlement Scheme;
  • A serious medical condition, including COVID-19, or significant medical treatment such as is required after a woman has a difficult birth;
  • Lack of permanent accommodation meant that they did not have access to a computer or the documents required to apply;
  • The applicant was in an abusive or controlling relationship that prevented them from applying; and
  • The applicant has physical or mental support needs.

The Home Office does not require employers to assess whether it was reasonable for an employee to have applied late to the EU Settlement Scheme. Under the temporary policy, if the employee provides a Certificate of Application evidencing that they have applied to the EU Settlement Scheme, the employer will be able to obtain a Positive Verification Notice from the Employer Checking Service. The employer will benefit from a statutory excuse from civil penalty for 6 months from the date of the Positive Verification Notice.

Follow-up checks

Employers must comply with the new code of practice when conducting follow-up checks where an initial check on a worker with a temporary right to work in the UK was undertaken before 1 July 2021.

EU Settlement Scheme issues

The Home Office has a large backlog of EU Settlement Scheme cases. Many EEA nationals applied to the Scheme by the 30 June 2021 deadline, and have the right to work in the UK whilst their applications are pending.

Under the updated code of practice, where an EEA national holds a “document issued by the Home Office showing that the holder has made an application . . . under [the EU Settlement Scheme]”, a prospective employer can use the Home Office Employer Checking Service to obtain a Positive Verification Notice; the employer will then benefit from a statutory excuse from civil penalty for 6 months from the date of the Positive Verification Notice. The latest employer's guide to right to work checks confirms that an email notification of receipt of an application can be used for an Employer Checking Service Check. A letter confirming receipt or a Certificate of Application can also be used.

Note that some EEA nationals are applying from overseas. Under temporary protection regulations, EEA nationals who have applied from overseas on the basis of residence in the UK will be granted temporary admission; their employers will be able to submit a Certificate of Application to the Employer Checking Service and secure a 6-month statutory excuse from civil penalty.

However, some EEA nationals who have applied from overseas have not done so on the basis of residence in the UK. They might be applying as ‘joining family members’ who did not live in the UK before 31 December 2020 themselves and so are not eligible to apply to the EU Settlement Scheme on the basis of their own residence. They should receive a Certificate of Application from the Home Office but if they enter the UK before their EU Settlement Scheme application is granted, they will be doing so as visitors; they would not have the right to work in these circumstances.

EEA nationals’ non-EEA family members must apply for EU Settlement Scheme family permits. As with joining family members, they will not have the right to work in the UK until their EU Settlement Scheme family permit is granted.

The limitations on the rights of EEA and non-EEA family members who have applied from overseas are aggravated by processing times. The Home Office is taking 3 months or more to process applications made from overseas. The Home Office refuses to provide any service standard for processing these applications, i.e. they do not provide any timeline whatsoever for the processing of EU Settlement Scheme applications. No priority services are available to expedite EU Settlement Scheme applications. 

As a result, many families have found it impossible to plan a move to the UK.

Online right to work checks

Employers have been able to conduct online right to work checks for some migrants, e.g. those holding biometric residence permits, for several years now. The process involves the migrant generating a ‘share code’ via the ‘Prove your right to work to an employer’ service on Gov.UK. The employer can use the share code and the migrant’s date of birth to verify the migrant’s right to work via the ‘View a job applicant’s right to work details’ service on Gov.UK.

Right to work can be only be checked via the online process for those who hold one of the following:

  • A current biometric residence permit or card; or
  • Status issued digitally under the EU Settlement Scheme;
  • Status issued digitally under the points-based immigration system, e.g. EEA nationals who used the ‘UK Immigration: ID Check’ app or Graduate visa holders;
  • British National Overseas (BNO) visa; or
  • A frontier worker permit.

Remote checking – It isn’t always for everybody

From March 2020 until 31 August 2021, a COVID-19 policy is in place allowing employers to check right to work remotely. After that date, employers will have to conduct manual checks on physical documents in the presence of the holder.

Employers will continue to be able to continue to conduct online checks of digital status during a video conference after the temporary COVID-19 policy terminates on 31 August 2021.

The differing policies on remote checking mean that, from 1 September, new employees whose right to work can only be checked via physical documents will need to have a face-to-face meeting with their employer before starting work. Notable consequences result:

  • British citizens will have to present passports to prospective employers in person, whilst many migrants’ right to work can be checked online.
  • Start dates might be delayed for workers who apply for visas from overseas and receive physical, temporary vignettes in their passports to facilitate their travel to the UK; they will have to quarantine before presenting themselves for a manual check of their vignette or collecting the Biometric Residence Permits they will need for the online checking process.

The Government has pushed back the end date for the temporary remote right to work checking policy a few times now; it is possible that the end date will be extended beyond 31 August or that the remote checking policies for hardcopy document holders will be made permanent.

The publication of new right to work policy documents in June 2021 clarifies several issues for UK employers but are also overwhelming. Employers will likely continue to struggle with the ever-increasing pace of immigration changes.

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