Right to Work Checks for Foreign Nationals

By Matthew Reymes Cole
18 Jun 2021

The end of digital right to work checks could delay thousands from returning to work across the UK. In this article, we’ll take a look at what right to work checks are, explore the upcoming changes, and help you navigate them.

UPDATE: Digital Right to Work Checks were originally due to end on the 21st June, however, the deadline has now been extended until 31st August 2021. Further announcements could follow...

Right to work checks

What are they?

A right to work check is a process that lets you ascertain whether an individual has the right to work in the UK. The main purpose of them is to prevent illegal working.

When should I carry them out?

You should carry out these checks against prospective employee in advance of employment. The Home Office guidance advises that employers can carry them out:

  • On the same day employment starts
  • Before any work is carried out
  • Any reasonable time in advance

With this guidance, it might be tempting to delay the checks until the last possible moment. However, doing this presents risks, particularly within this tricky period.

How do I conduct a check?

First, ensure you are carrying out these checks against all prospective employees. That includes individuals who are British. This removes the risk of discriminatory treatment. It also prevents mistakes about permission to work where the individual is wrongly assumed to be British.

There are three steps employers must complete when carrying out right to work checks. These are:

  1. Obtain original right to work documents from the individual
  2. Check the validity and authenticity of the documents in the presence of the individual
  3. Copy the documents and keep a secure, dated copy which includes the date for follow-up checks.

What has changed?

In light of the coronavirus outbreak, since 30 March 2020 employers have been able to adopt a revised process for checking right to work. Here’s how it works:

  • The employee sends a scanned copy or photograph of necessary documents to the employer via an email or mobile app.
  • The employer arranges a video call with the worker
  • During the video call they should be asked to present their original documents to the camera

Previously it was expected that a retrospective check would need to be carried out if the employee began employment, or needed a follow up check, during these measures. However, the government has confirmed this won’t need to take place.

The employee may give you permission to check their details online in certain circumstances. These are:

  • They have a Biometric Residence Permit
  • They’ve been granted “settled status” under the EU Settlement Scheme

Virtual right to work checks will end on 31st August and physical checks will begin on 1st September. This means you should return to the usual way of conducting right to work checks.

Future changes

The current right to work checking systems are expected to be updated from 1 July 2021.

The Government is yet to provide further information but here’s what we know so far:

From 1 July 2021, EU, EEA and Swiss citizens will no longer be able to use their passport or national identity card to prove their right to work. Instead, they will need to provide evidence of lawful immigration status in the UK. Employers will need to check their right to work online using:

  • a share code
  • their date of birth

EU Settlement Scheme – 30th June

The change to right to work checks isn’t the only difficulty you’ll face with foreign workers in the next few weeks. The deadline to apply for settled status via the EU Settlement Scheme is the 30th June 2021.

As an employer, you should take steps to ensure all eligible employees have applied. If there are language barriers or technological issues, offer assistance with their application.

If you employed someone before 31st December 2020 and they haven’t applied for settled status by the deadline, further guidance will soon be provided by the government.

HR implications

Prior to the recent update, virtual right to work checks, permitted due to coronavirus, were due to end on 21st June 2021. This may have caused some issues for employers. With social distancing restrictions lasting will until 19th July 2021, physical right to work checks would have been challenging.

Now the deadline has now been extended until 31st August 2021. This gives you more time to utilise digital right to work checks. However, just because this has been delayed, doesn't mean you should ignore the issue. The roadmap ahead is still open to change and further delays may cause more issues.

To minimise the disruption caused by this, you should start preparing now. Take steps to ensure your workplace is COVID-secure, so you can return to the normal way of checking that an employee has the right to work in the UK.

Keep in mind that an update is expected from the Government soon. We will continue to update our guidance to assist with the latest deadlines.

If you’re uncertain how to manage right to work checks in your business, speak to one of our HR advisers today for immediate advice on 01455 858 132.

About the Author

Matthew Reymes-Cole

Matt joined Croner in 2007 as an employment law consultant and has advised clients of all sizes on all aspects of employment law. He has worked within management positions since 2017 and currently oversees a team within the litigation department, whilst continuing to support a number of clients directly.

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