Right to work checks – what do you need to know from the latest update?

Are you ready for the post-Brexit era? Here we break down the latest guidance on right to work checks.

In this update, we cover (1) the extension of the temporary Covid-19 adjusted right to work checks, (2) the updated guidance on right to work checks for EEA and Swiss nationals from 1 July 2021 and (3) the draft code of practice on preventing illegal working.

Coronavirus (Covid-19): right to work checks

Temporary changes to right to work checks were introduced on 30 March 2020 and these have now been extended to 31 August 2021 (inclusive). Retrospective checks don’t need to be carried out once these measures come to an end.

How can you conduct an adjusted right to work check?

• Ask the individual 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 individual – ask them to hold up the original documents to the camera and check them against the digital copy of the documents record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to Covid-19”.
• If the individual has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system you can use the online right to work checking service while doing a video call.

What’s the position from 1 September 2021?

The Home Office has given advance notice that the temporary adjusted right to checks will end and from 1 September 2021, checks will need to be done either online or manually as set out in section 2 below. 

As the adjusted right to work checks have been hugely beneficial for businesses, not only in terms of saving time but also acting an efficient way to checking documents whilst working in a hybrid work environment, we hope that the Home Office will make the adjusted right to work check a permanent feature. Over the next few months, we expect that there will be more lobbying from the immigration and recruitment sector for a permanent change.

Right to work checks for EEA and Swiss nationals from 1 July 2021

Between now and 30 June 2021

All EU, EEA and Swiss nationals can continue to use their national passports and national identity cards to prove their right to work until 30 June 2021.

From 1 July 2021

Irish citizens can continue to use their passports or passport cards to prove their right to work, however all other EU, EEA and Swiss nationals will not.

To check EU, EEA or Swiss nationals right to work from 1 July 2021 you will need to check their right to work online using a share code and their date of birth or check their original documents confirming their UK immigration status if they cannot share this digitally.

How do you conduct an online right to work check?

To check right to work status online you can use the Home Office online right to work checking service:

• This service supports Biometric Residence Permits (‘BRPs’), Biometric Residence Cards (‘BRCs’), status under the EUSS, status under the points-based immigration system, BNO visas and frontier worker permits.
• Individuals must first view their own profile online, they may then choose to share this with you by providing a share code directly or by sharing through the service, in which case you will receive an email containing it.
• The share code will allow you to view the individual’s right to work information when entered with their date of birth on the equivalent employer portal.
• You must be satisfied that the online check confirms the individual has the right to work for you and that the photograph is of that individual.
• A clear copy of this page must be retained.

How do you conduct a manual right to work check?

For individuals who cannot share their status online, a manual check can be conducted:

• To check right to work status manually, you must obtain an original of one or more of the acceptable documents.
• These must be checked in the presence of the relevant individual to ensure the details are consistent, match the individual and show they have the right to work for you.
• You must make and keep copies of the documents along, with a record of the date the check was conducted.

Draft Code of Practice on Preventing Illegal Working

The Home Office have also released a revised draft code of practice detailing changes to right to work check requirements for EU, EEA and Swiss citizens from 1 July 2021. Right to work checks done prior to the 1 July 2021 will not need to be repeated retrospectively under the draft code.

The draft code includes changes to the lists of acceptable documents and now lists Frontier Work Permits, Irish passports and several additional documents for EEA and Swiss nationals.

References to the temporary Covid-19 adjusted right to work checks state the end date as 20 June 2021, but in light of the Home Office’s announcement to extend the temporary Covid-19 adjusted right to work checks up to and including 31 August 2021, we expect the draft code to be updated shortly.