Navigating the new normal

Coronavirus and right to work

All content on this page is correct as of March 31, 2020

UK Visas & Immigration (‘UKVI’) has announced temporary adjustments to its requirements for how employers conduct right-to-work checks during the current COVID-19 environment. Remember that these checks need to be conducted before employing someone new and may also be required from time to time for existing employees with temporary visas due to expire.

The first thing an employer should do is check whether they have a status that allows you to confirm their right to work online.  This can be done where the individual has a Biometric Residence Permit, Biometric Residence Card or status under the EU Settlement Scheme.  The individual will need to give you permission to check their status.  This method of check will establish a statutory excuse against the civil penalty regime for the duration of the individual’s status.

If individuals don’t have a suitable status above, employers need to check their documents.  As of 30th March 2020, employers are permitted to check documents without having the actual physical documents.  In order to do this employers should:

  • ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app;
  • arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents; and
  • record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”.

Once the current restrictions lift, the employer will be required to do retrospective right to work checks using the physical documents. You should mark this check: “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.”  The retrospective check must be carried out within 8 weeks of the COVID-19 measures ending and UKVI will confirm in advance when the measures will end.  Both checks should be kept for your records.  While this doesn’t provide a statutory excuse, UKVI have confirmed enforcement action will not be taken against employers who follow the above procedure.

If the individual has no valid documents to show because they have an outstanding application to UKVI, the employer should use the Employers’ Checking Service as normal.  This will provide a statutory excuse for six months and the employer should make sure to check new documentation before this expires.

It is important to note that, due to COVID-19, there may be some individuals in the UK whose visas were due to expire but who have been unable to make a new application due to the current restrictions.  UKVI has made arrangements for these people and employers should note that they may still have status even though they have no valid documentation so it is important not to discriminate against a job applicant or employee because they are unable to show you their documents.  

This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.

All content on this page is correct as of March 31, 2020.

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