COVID adjusted Right to Work check processes extended significantly

The Home Office has announced another extension to the adjusted process for carrying out right to work checks remotely. In an update to the guidance published on 26th August, the end date has now been postponed to 5th April 2022 – more than two years since they were first introduced. The announcement came shortly before the existing extension was due to expire on 31st August.

First introduced in March 2020, the process has now been extended four times across Spring and Summer 2021. The latest extension is the longest so far, allowing employers to perform remote checks for an additional seven months.

Under normal right to work guidance, when performing checks using physical documentation employers are required to view and take copies of the original document. The prospective employee being checked must be present (whether in person or via a live video link) however the employer must be in the physical possession of the right to work document.

The adjusted process however, allows the check to be done entirely remotely. Instead of being in physical possession of the document, the employer can accept an electronic copy such as a scan or photograph provided by the prospective employee. They must then arrange a live video call whilst in possession of the copy. In the call, the prospective employee must hold the right to work document to the camera to allow it to be compared against the copy provided and the photograph against the individual’s likeness. Once satisfied, the employer must record the date that the check was carried out and mark the copy with “adjusted check undertaken on [insert date] due to COVID-19”.

Employers also have the option of using the online Home Office services instead of obtaining copies of physical documents.

Most non-UK or Irish nationals may be able to use the online right to work check service to prove their right to work, where they simply provide a share code to the employer which allows them to verify their immigration status directly with the Home Office. A face-to-face meeting is still required to check the prospective employee’s likeness against the photo held by the Home Office to prevent impersonation. Employers cannot mandate that an individual proves their right to work using the online service, and if requested by the employee must be able to perform a check using physical documents if requested by the employee and the relevant documents are available.

For individuals who cannot produce any evidence of their right to work in the UK, or who currently have an application underway with the Home Office, employers can make use of the Employee Checking Service to obtain confirmation from the Home Office, which will give temporary proof of right to work.

When first announced the adjusted process warned that employers would be required to carry out follow-up checks once temporary change was lifted – re-checking all employees who had their check performed using the adjusted method. This requirement was removed in a previous announcement. Provided that the check is correctly carried out using the process laid out, employers will maintain a defence against a civil penalty in the event that the employee was found to be working illegally.