Having been extended on a number of occasions, the Covid adjusted Remote Right to Work Check will officially come to end on 5th April to be replaced by a mixture of in-person manual checks and a number of online checks.
These are significant changes to the previous procedures and they need to be carefully studied. Full details, and they are very long and involved, can be found here.
Legitimate Checks do not need to re-done
Originally, the Government had stated that once the temporary Remote Checks period had come to an end, all checks would have to either be verified or be repeated in person. But now that is no longer necessary.
So, the good news is that any legitimate check carried out before 5th April will not have to be re-done, even if carried out remotely.
Of course, if such checks reveal the Right to Work is a time limited one, they will still need following up at the appropriate time.
Many employers are already familiar with the online check for EU and EEA nationals who qualify for settled and pre-settled status.
But until now employers have also been able to take copies of their Biometric Residence Cards and Permits. From 6 April this will no longer be possible and the free online checking service will be the only way to check this and show a “Statutory Excuse”.
The UK Visa and Immigration Service (UKVI) has suggested they will also be introducing a paid for online check for British and Irish Passport holders and those with Indefinite Leave to Remain.
A manual check will always still be permitted for the time being, which will cost nothing.
Permanent or Temporary?
Carrying out Right to Work checks is something that all employers should know about. It is mandatory to carry these out for all new employees.
There are two lists of documents, List A and List B.
List A refers to those who have a permanent right to remain and work in the UK. You do this check once, and if you establish the worker has a permanent or continuous Right to Work, you are done forever. It does not have to be checked again while they continue to work for you.
List B on the other hand, relates to those who have a temporary or time-limited permission to remain or work in the UK. Depending on how temporary or time-limited that permission is, employers have to recheck the permission periodically, and certainly shortly before it expires. This is also the case for the online check. Check the guidance for more detail on this.
These Lists A and B are slightly different to what they were so do not rely on old lists!
It is the re-checking process we suspect which is where most employers will fall down. Many are quite assiduous at checking people’s Right to Work when they first joined the organisation, but singularly fail to follow up and recheck their permission as prescribed by the law.
Any audit of your workers could lead to embarrassing situations, and indeed, we have dealt with employers who have found themselves in this situation. In almost all cases, it has not meant that individuals are not allowed to work in the UK, simply that their paperwork is not up-to-date, and in some cases the individual themselves has not renewed it.
The risk to the employer, however, is an expensive fine, so make sure you have a robust system in place, especially if you employ a lot of existing non-UK nationals. If you do not employ many/any non-UK nationals do not think it is unimportant. Just checking people who look/sound different is a good way to generate a race discrimination claim.
The UKVI has stated its intention to put all checks online by 2024.
The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice.