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Right to Work Checks – End of the Covid-19 Concession

From 1 October 2022, the way that employers can carry out right to work checks is changing.

Right to Work Checks

Employers are required to carry out right to work checks on all prospective employees. The check must be carried out before their employment starts and follow up checks must be carried out if the employee only has a time-limited right to work.

Provided that a valid right to work check is carried out (i.e. in accordance with the Home Office guidance), the employer will obtain what is known as the ‘statutory excuse’. The statutory excuse enables employers to avoid a fine if they have carried out a valid right to work check but are later found to be employing an illegal worker.

It is crucial that employers carry out checks correctly otherwise, they could face criminal prosecution or a fine of up to £20,000 per illegal worker employed.

The Covid-19 Concession

Following the outbreak of the Covid-19 pandemic, the Home Office introduced a temporary concession which allowed employers to use electronic documents to carry out right to work checks via video calls. This concession is ending on 30 September 2022.

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What does this mean for employers?

Employers can continue carrying out Covid-19 adjusted checks up to and including 30 September 2022. However, from 1 October 2022, if an employer carries out a right to work check using the Covid-19 concession, the check will be invalid and will not provide the employer with the statutory excuse.

From 1 October 2022, there are three possible ways to carry out a right to work check:

  1. Online Check – using the Home Office online service. As of 6 April 2022, employers must use the online service to check the right to work of a visa holder with a biometric residence card. If they fail to do so (even if they use the manual check), the employer will not obtain the statutory excuse.
  2. Manual Check – the employer carries out the check using the individual’s physical ID documents.
  3. Identity Service Providers – as of 6 April 2022, employers can use certified Identity Service Providers to carry out digital right to work checks for British and Irish citizens who hold a valid passport or Irish Passport card.

The end of the Covid-19 concession means that when carrying out manual checks, the employer must have physical possession of the individual’s ID documents. Employers can still check the documents against the individual’s appearance via a video call (i.e. if the individual sends their documents by post) however, employers cannot check a faxed or scanned copy of the document.

Do employers need to carry out retrospective checks?

No, the Home Office has confirmed that employers do not need to carry out retrospective checks on employees who had a Covid-19 adjusted check between 30 March 2020 and 30 September 2022. Provided that the check was carried out in accordance with the Covid-19 adjusted guidance, the employer will maintain a statutory excuse.

If you have any questions about anything discussed in the article, or on any other immigration matters please do get in touch with our Expert Immigration lawyers.

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Isabelle Cernis

Solicitor | Employment

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+44 (0) 791 257 8938

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Flora Mewies

Partner | Employment & Head of Immigration

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+44 (0) 752 522 5480

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Gillian Burns

Managing Associate | Employment

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+44 (0)773 846 2372

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Claire Hutchinson

Solicitor | Employment

+44 (0)330 137 3180

+44 (0)759 578 1841

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