In response to the COVID-19 pandemic, on March 30, 2020, the Home Office put in place temporary measures allowing “adjusted” right to work checks to be carried out over a video call using copies of original documents.

The Home Office has now announced that the temporary COVID-19 adjusted right to work check measures will end on May 16, 2021, after which employers are expected to return to the usual “pre-pandemic” right to work check processes. Retrospective checks will not need to be carried out on employees who had a COVID-19 adjusted right to work check from March 30, 2020 through May 16, 2021.

Key Points:

  • The following temporary changes to the right to work check process made on March 30, 2020, in response to the COVID-19 pandemic remain in place until May 16, 2021:
    • Checks on original documents (such as passports) can currently be carried out over video calls.
    • Job applicants and existing employees can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals.
    • Employers should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.
    • Employers can continue to carry out online right to work checks where it is possible to do so, e.g., if an applicant has an online status under the EU Settlement Scheme or holds a Biometrics Residence Permit and is able to provide a share code.
  • From May 17, 2021, employers must either:
  • Employers do not need to carry out retrospective checks on those who had a COVID-19 adjusted check between March 30, 2020, and May 16, 2021 (inclusive).

Analysis & Comments: Previous Home Office guidance confirmed repeat retrospective checks on original documents would be required on the adjusted right to work checks within eight weeks of COVID-19 restrictions being lifted. Therefore, the updated guidance should come as positive news to employers who have been undertaking the adjusted right to work checks since March 30, 2020; however, logistics around carrying out checks again under the normal requirements may be a challenge as return to office plans are finalized.

Employers should take note of the May 16, 2021, date for when the temporary adjustments for right to work checks are ending and put measures in place for applicants who are not able to generate a share code for an online right to work check.

For instance, for a British national with an original passport, the applicant would need to report to the office in person with the original passport in their possession from May 17, 2021. This is so the validity of the original passport is checked by the employer in the presence of the holder.

Employers may be permitted to do a right to work check over a video call but only provided the employer is in possession of the original documents, as confirmed in the employer right to work guidance. In this instance, the applicant would need to physically post their passport to the employer to enable the check to be conducted via a video call. This would allow the employer to check the likeness of the applicant on the video call against the original document in their possession. Employers can no longer rely on the inspection of a document via a video call, or by checking a scanned copy of the document.

The guidance further confirms employers will maintain a defense against a civil penalty on any adjusted checks undertaken during this period, provided they were done as set out in the COVID-19 adjusted checks guidance.

The response to COVID-19 continues to develop, and Deloitte will provide additional updates as information becomes available.

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