Update on the COVID-19 emergency right to work checks
In March 2020, the UK Government introduced emergency legislation on how to deal with right to work checks during the pandemic. We reported last month that these checks would be extended until 20 June 2021 given the continuation of lockdown measures for many businesses.
It has now been confirmed that a further extension has been granted and employers now have up to and including 31 August 2021 to continue using these emergency measures, which are:
- Right to work checks can continue to be carried out via video call
- Scanned documents or a photo of documents can be sent for checks using email or a mobile app, rather than sending originals
- Employers should use the Government’s ‘Employer Checking Service’ where any of the required documents cannot be provided.
From 1 September 2021, as it stands, an employer must either check the applicant’s original documents or check the applicants right to work online where they have provided a share code.
We continue to monitor the situation and will provide further updates as they are published.
Key recruitment changes expected as of 4 June
Over the last year we have seen changes in how we recruit. When the Brexit transition period and free movement of people ended on 31 December 2020, the UK introduced a new single points-based immigration system for both EU and non-EU nationals. We also saw emergency legislation introduced in March 2020 that addressed the issue of how UK employers conduct right to work checks during a pandemic.
As we enter June, we are expecting to see further developments once more when it comes to recruitment:
- EU nationals who were residing in the UK as of the 31 December 2020, have until 30 June to apply to the EU Settlement Scheme. Applying to this scheme will give them either settled or pre-settled status, allowing them to continue working in the UK from 1 July. Irish citizens and those who have leave to remain or enter the UK do not need to apply.
- Those entering the UK from 1 January, require a visa to work under the new points-based immigration system, unless they are eligible to apply to the EU Settlement Scheme.
- The grace period that the Home Office introduced for right to work checks, as part of the transition to the new points-based system also comes to an end on 30 June. This grace period allowed employers to continue to accept passports and national identity cards of EU nationals in the usual way or to use the online checking service as evidence of their right to work in the UK.
- The 2020 emergency legislation that deals with right to work checks during the pandemic are also ending this month on the 20th, meaning that from 21 June, UK employers must revert to physical document checks, as were in place before the pandemic.
These are all significant developments and care should be taken in how they are managed. The good news is there is no requirement for employers of EU nationals who resided in the UK before 1 January and who are applying to the EU Settlement Scheme to carry out retrospective right to work checks to confirm the settled or pre settled status. The fact that an employer will have previously conducted a satisfactory right-to-work check will still provide them with a statutory excuse against liability for preventing illegal working.
EU Settlement Scheme
Employers are encouraged to continue to publicise the EU Settlement Scheme amongst their employees to ensure all those who wish to apply to the scheme to continue living and working in the UK are aware of its existence, and the fast-approaching deadline. The Home Office have published an employer toolkit to help advertise this with posters and leaflets etc.
The Government have reiterated the position in their current guidance that all employers have a duty not to discriminate against EU/EEA/Swiss citizens. Whilst these citizens may choose to share their settled status with their employer (by providing their unique online share code for the online Right to Work service), employers cannot require them to show their status until after 30 June. Employers will risk facing claims of race discrimination if they insist on seeing evidence of settled or pre settled status, up until this date. For further information, read the government’s guidance on ‘Employing EU Citizens in the UK’.
This transition period to using the new points-based immigration system does present challenges to employers who take on new recruits between the period 1 January and 30 June; as they will not be aware if the individual was in the UK prior to the 1 January 2021 and therefore, whether they need a visa or not. The Home Office have further announced that employers are not expected to differentiate between those who arrived before the 1 January or during the grace period from the 1st. For further information, read the government’s guidance on ‘An Employer’s Guide to Right to Work Checks’.
For advice or support with your next recruitment campaign, contact HR Solutions on 0844 324 5840. Find out about our Fixed Fee Recruitment service by visiting www.hrsolutions-uk.com/services/fixed-fee-recruitment.
This article was first published on 9 June 2021 and then updated and republished on 22nd June 2021.