COVID-19 has impacted every business throughout the country in many different ways, whether it is employees being furloughed or agile working taking a new direction.

A real issue arises in relation to Immigration and how that impacts your business.

The Home Office has provided various pieces of guidance with respect to temporary exemptions which may be applicable.  However, the guidance is complicated. If the guidance is actioned incorrectly, it could have serious consequences for the business.

One of the key temporary provisions which have been put into place relate to Right to Work Checks which we discuss further below.

So, what is the Right to Work Check?

Checking that all staff working for you have the right to work in the UK is one of the key duties of an employer. It is an essential element for all businesses regardless of the size or industry sector.

A Right to Work check ensures that you have carried out your duty to ensure that the employee has the right to work in the UK.

What happens if I do not comply with the Right to Work Checks?

Failing to carry out a right to work check could result in the risk of hiring illegal workers. The maximum fine for hiring illegal workers is £20,000.00 per illegal worker. If an employer knowingly hires someone who does not have the right to work in the UK that employer could also face a possible lengthy prison sentence.

At the same time, the failure to comply with such checks will be recorded on the Home Office central system and may affect your ability to hire foreign nationals in the future.

Current Position

The Home Office emphasises that employers must still ensure that they carry out Right to Work Checks to determine if that person has the right to work in the UK. Usually, this would require the employer seeing the original document, such as a passport, to ensure that it is an authentic document. The current climate makes this virtually impossible.

As a result, the Home Office has provided a temporary solution to enable such checks to be done remotely. In short, employers do not need to see original documents. Instead, employees can send clear, legible scanned/photographed documents to their employers. This can be done either via email or through their mobile phone. The Guidance also goes further to say that the document can then be verified by the employer on a video call.

So what is the Temporary Process?

  • Ask the employee to submit a scanned copy or a photo of their original documents via email or via their mobile phone. 
  • Arrange a video call with the employee. During the call ask the employee to hold up the original documents to the camera. The employer is to check them against the digital copy of the documents they have received.
  • Record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19 

Alternatively, you can still use the online Employer Checking Service which can be used if the employee has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme. Please note that the employee must give you permission to view their details to utilise this service.

Temporary or Permanent

At this stage, the adjusted checks are intended to be a temporary provision and can be used until such time that the Home Office give an advance date of notification when the right to work checks will revert to their original procedure.

After the original procedure resumes, employers will have a maximum period of 8 weeks to conduct retrospective right to work checks on employees whose right to work checks were conducted using the temporary measure.

At Lupton Fawcett, we can manage Right to Work checks and train your HR staff as to how to apply them correctly to ensure that any risk is minimised. Immigration is becoming complex and responsibilities on businesses are constantly growing. For all your immigration needs, contact us at Lupton Fawcett to discuss how we can help you.

Arif Khalfe is the Head of our Immigration Department.  Please contact him in the first instance for any advice in this area.

If you are concerned your business has made errors in the uptake and administration of the coronavirus job retention scheme (CJRS) or are facing the prospect of a Furlough Fraud investigation by HMRC, our team of Furlough Fraud Investigation Solicitors can offer you tailored legal advice and specialist representation.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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