News item

Updated guidance on right to work checks

27th April 2021

A couple of updates have recently been issued regarding right to work checks.

The end of temporary adjustments to right to work checks due to COVID-19

The government has announced that temporary changes to right to work checks made on 30 March 2020 due to the pandemic will cease after 16 May 2021.

In brief, the temporary adjustments allowed individuals to submit electronically scanned copies/photos of their original documents, with the employer then checking the documents or online service whilst on a video call with the individual.

From 17 May 2021 employers must either:

  • check the applicant’s original documents, or
  • check the applicant’s right to work online, if they’ve given their share code

Schools/colleges do not need to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 16 May 2021 inclusive.

Further information about the end of the temporary COVID-19 adjusted check can be found on Gov.uk.

Please note that the end of temporary adjustments to right to work checks does not impact on the ID verification process required for DBS checks. The adjustments made to DBS processes due to COVID-19 (allowing ID documents to be viewed over video link and scanned images to be used in advance of the DBS check being submitted, with original documents presented subsequently) remain in place until the DBS notifies otherwise. Nevertheless, the normal identity checking guidelines should still be followed wherever possible and the adjusted process used only in urgent cases.

Updated version of Home Office guidance: An employer’s guide to right to work checks

A revised version of the guidance document An employer’s guide to right to work checks was issued on 17 March 2021 and includes updated information for employers on conducting right to work checks for Swiss nationals and EEA citizens during the period 1 January to 30 June 2021 (the post-Brexit transition ‘grace period’). Further information can also be found in a Home Office factsheet.

EEA and Swiss nationals who were resident in the UK before the end of the transition period (31 December 2020) have a grace period until 30 June 2021 in which to apply for either settled or pre-settled status, which will give them the right to work in the UK.

EEA and Swiss nationals entering the UK from 1 January 2021 are not able to apply for settled or pre-settled status due to the end of free movement. These individuals require a visa to be able to work in the UK under the new immigration system.

The guidance still does not directly address the issue that employers will not necessarily know whether new starters from the EEA/Switzerland during the grace period were already in the UK before 1 January 2021, and therefore whether or not they require a visa under the points-based system of immigration. The Home Office does repeat, however, its previous advice that employers are not expected to differentiate between EEA/Swiss citizens who arrived before the end of the transition period and those arriving afterwards, during the grace period from 1 January to 30 June 2021.

The revised guidance confirms that:

EEA nationals and Swiss citizens:

  • May use a passport or national identity card to evidence their right to work until the grace period ends on 30 June.
  • From 1 July 2021 checks will change: right to work will be evidenced using the Home Office online service (by employees providing evidence of their immigration status rather than their nationality) and new guidance will be published closer to the time.

Employers:

  • May invite those who already have status under the EU Settlement Scheme, or status under the points-based immigration system, to evidence their right to work using the Home Office online service but cannot insist that such individuals use the online service (in which case they must use their passport/identity card as evidence during the grace period).
  • Are not subject to any mandatory requirement to undertake retrospective checks on EEA nationals who were employed on or before 30 June 2021 when the grace period ends.

There still remains a degree of uncertainty over the situation regarding EEA/Swiss nationals who arrived in the UK after the end of the transition period (particularly where the school/college knows that this is the case) and who therefore require a visa to work. As noted above, the Home Office guidance states that employers do not need to take into account when the individual entered the UK when undertaking right to work checks during the grace period and will maintain a continuous statutory excuse against a civil penalty if they carried out a right to work check on an EEA citizen as set out in the guidance that applied at the time of employing the individual. This is the case even if the employer later became aware that the EEA citizen has no lawful status. If, after the end of the grace period, the employing school/trust becomes aware that an employee has no lawful status we would suggest that it would still be prudent to seek further advice at that time on the particular circumstances, even if a passport or identity card had been validly presented as evidence of right to work.