Coronavirus UK and right to work checks relaxed by the Home Office

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Coronavirus UK and right to work checks relaxed

Cases of coronavirus are on the rise today the latest figures from public health authorities on the spread of COVID-19 in the United Kingdom, the figure at 20.11 pm on the 31 March 2020 stands at 25,150 confirmed cases in England with 1,789 confirmed deaths. Employers are still required to carry out right to work checks during the coronavirus pandemic.

Here are some frequently asked questions, to help support you:-

What does the right to work mean?

In simple terms, all UK employers must carry out document checks to ensure that the worker does not have any adverse immigration status before offering employment. This is done by requesting existing employees and all potential employee candidates supply evidence of their original documents which confirms their immigration status in the UK.

Under section 15 of the 2006 Act, an employer may be liable for a civil penalty if they employ someone who does not have the right to undertake the work in question.

However, the employer will have a “statutory excuse” (under section 15(3) of the 2006 Act) if it carries out a “Right to Work” checks to comply with the Immigration (Restrictions on Employment) Order 2007, SI 2007/3290 (as amended).

In general terms, an employer will not face the civil penalty, which can be up to £20000 per illegal worker, if they can show through documentary evidence that they completed all 4 steps.

How does the employer conduct the right to work?

The types of documents that employers can accept as evidence of the right to work are governed in law through The Immigration (restriction on Employment) Order 2007.

Step 1: Obtain the document

The documents an employer may accept from an employee to demonstrate their right to work are set out in two distinct lists:

  • List A contains the range of documents which the employer may accept for a person who has a permanent and unrestricted right to work in the UK. This includes all UK, EU and Swiss nationals, and any non-EEA nationals holding Indefinite Leave to Remain (also known as settlement) or any individual holding Right of Abode in the UK. 
  • List B contains the range of documents which the employer may accept for a person who has a temporary/restricted right to work in the UK. This includes all non-EEA nationals subject to immigration control who require a visa to prove their right to work in the UK. 

Step 2: Check the document

Key points to remember are that you must:

  • Undertake the check in the presence of the worker.
  • Check that photographs and dates of birth are consistent across documents and with the worker’s appearance.
  • Ensure that the expiry dates of any limited leave to enter or remain in the UK have not passed.
  • Check if there are any UK Government endorsements (stamps, visas, etc.) that would indicate if the individual may undertake the role or if any restrictions apply (e.g. Tier 2 or 5 visa holders).
  • The employer must be satisfied that the documents are valid and genuine, have not been tampered with and belong to the holder.
  • Obtain an additional document if the worker provides two documents that have different names, and ask them to explain the reason. The additional document could be a marriage certificate, a divorce decree, a deed poll or statutory declaration.

Step 3: Copy the document

A document can only be copied and verified by the employer. For each document, the employer must copy the following in a format that cannot be altered (for example a photocopy or scan):

  • A copy of the passport. This must include any page with the document expiry date, nationality, date of birth, signature, leave expiry date, biometric details and photographs. In most cases, this will be the ‘bio-data’ page of the passport. The employer must also make copies of the UK visa and/or stamp inside the passport. This must show that the employee has an entitlement to be in the UK and is entitled to undertake the work in question.
  • For EU nationals who present an ID card, both sides of the document must be copied.
  • Both sides of a biometric residence permit (where held).
  • All other documents in their entirety.

Step 4: Certification of the copied document

On each copied page, the employer must provide their signature and print their name and the date and time to confirm that the employer has seen the original page or pages of the document. The employer must also include the statement ‘I confirm that this is a true copy of the original, taken on [DATE AND TIME].

Who must carry out the right to work check and why?

The employer is a person or institution that hires employees, is responsible for carrying out these checks. In some situations, Human Resource Managers within the business that do the recruiting within the company would be responsible for conducting the checks. Outsourced Human Resources consultants would not be accountable for any breaches and are not and cannot be a “statutory excuse”. Under section 15 of the 2006 Act, an employer may be liable for a civil penalty for employing an individual who does not have the right to undertake the work in question. This could result in Liability of up to £20,000 for each illegal or overstayer migrant employed. Further Publication of business details by Immigration Enforcement as a deterrent to other employers

Can I refuse document check, because of self-isolation?

 Absolutely not; As of 30 March 2020 the following temporary changes have been made by the Home Office to safeguard against the coronavirus. Employers will be allowed to check documents over video calls. Further, job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals, this is only a temporary measure.

Is the Employer still required to run employee checks with the Home Office during coronavirus?

Yes, employers should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents checks continue to be necessary and you must continue to check the prescribed documents listed in right to work checks: an employer’s guide. The Home Office can still impose a fine, and It remains an offence to knowingly employ anyone who does not have the right to work in the UK. Further,` an employer cannot use coronavirus as a “statutory excuse”

What are my rights as an EU worker, must I prove permission to work?

In general terms, your employer must still check your right to work, the employer will continue checks in the same way as now until 30 June 2021 for citizens of the EU, Switzerland, Norway, Iceland and Liechtenstein. You will not need to make retrospective checks for existing employees.

What are workers’ rights to work documents?

In simple terms, these documents will be the combination of documents accepted as right-to-work documents. The correct document combinations depend on the potential employee themselves but include these documents: Passport, Biometric Residence Permit, National Identity Card, Full Birth Certificate, Certificate of Naturalisation, Passport with valid Visa inside. It is the employer’s responsibility to check the validity of the documents presented and “you must be in the physical possession of the original document or documents”.

Here are more details of the documents a worker could show:-

  • a passport showing that you are a British citizen or a citizen of the United Kingdom and Colonies, but you must have right of abode in the United Kingdom
  • An EU passport or national identity card showing that you are a national of the European Economic Area or Switzerland, but you must have settled or settling status in the UK
  • A Biometric Immigration Document (commonly  referred to as a BRP Card) issued by the UK Border Agency to the holder which indicates the workers named in it is allowed to stay indefinitely in the United Kingdom or has no time limit on their stay, and or would status “permission to work” in the United Kingdom
  • a passport or other travel document endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the United Kingdom, has the right of abode in the United Kingdom, or has no time limit on their stay in the United Kingdom
  • an Immigration Status Document issued by the Home Office, Border and Immigration Agency or UK Border Agency to the holder with an endorsement indicating that the person named in it is allowed to stay indefinitely in the United Kingdom or has no time limit on their stay in the United Kingdom when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer
  • a full birth certificate issued in the United Kingdom which includes the name(s) of at least one of the holder’s parents, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer, but further evidence will be required to confirm permission to work
  • a full adoption certificate issued in the United Kingdom which includes the name(s) of at least one of the holder’s adoptive parents, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer, but further evidence will be required to confirm permission to work
  • a certificate of registration or naturalisation as a British citizen, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer, but further evidence will be required to confirm permission to work

What are my rights if my documents are not acceptable by my employer?

An employer can reject any of the documents listed above which have expired, this will also include passports holding no time limit. Additionally, a letter issued by the Home Office, Border and Immigration Agency or UK Border Agency to a worker which indicates that the person named in it is allowed to stay indefinitely in the United Kingdom when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer will no longer be acceptable, the worker must supply a valid passport and a no-limit BRP Card.

You have the right to request your employer conducts a “right to work with the Home Office urgently”, and further as a worker, you must take steps to sort out your immigration status documents. The Home Office will send you a ‘Positive Verification Notice’ to confirm that the applicant has the right to work. You must keep this document.

You have the right to apply for updated Home Office letters and apply for your no time limit BRP Card, once you have made your application, you ought to supply the reference details to your employer, to resume employment. 

What are my rights as a worker that does not have documents to show my right to work?

You are not allowed to work in the UK without your immigration status documents, the employer can terminate your employment and or withdraw the employment offer with immediate effect. 

You have the right to request your employer conducts a “right to work with the Home Office urgently”, and further as a worker, you must take steps to sort out your immigration status documents. The Home Office will send you a ‘Positive Verification Notice’ to confirm that the applicant has the right to work. You must keep this document.

You have the right to apply for updated Home Office letters and apply for your no time limit BRP Card, once you have made your application, you ought to supply the reference details to your employer, to resume employment. 

During this period the employer must take extra care to ensure no-one is discriminated against as a job applicant or employee because they are unable to show you their documents. For more information, please see the code of practice for employers: avoiding unlawful discrimination while preventing illegal working.

Can I refuse a face to face interview about my rights to work documents with my employer because of coronavirus?

Yes, you can refuse a face time interview if you are unwell and suffering from COVID 19. You should request another interview date, and offer to send your immigration status documents (colour) as scanned documents to the employer. The employer has the duty to conduct a “right to work with the Home Office urgently”, and further as a worker, you must take steps to sort out your immigration status documents. 

The Home Office will send you a ‘Positive Verification Notice’ to confirm that the applicant has the right to work. You must keep this document.

How should employers check right to work documents during COVID 19?

  • The employer should ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app
  • The employer must arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents
  • The employer must record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”
  • If the worker has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme you can use the online right to work checking service while doing a video call – the applicant must give you permission to view their details

Does my employer have the right to request me to post my original right to work documents for inspection?

In simple terms, an employer does not have the right to request you post your immigration status documents, you can refuse to do so. You can send scanned copies of your immigration documents and the employer has the duty to conduct a “right to work with the Home Office urgently”, and further as a worker, you must take steps to sort out your immigration status documents. It is also important to remind your employer that your documents may become misplaced owing to the postal services running limited services because of  COVID 19, and you do not wish to run the risk of losing your documents.

What are my rights if my employer terminates my employment because my right to work documents have expired?

You have the right to apply for updated Home Office letters and apply for your no time limit BRP Card, once you have made your application, you ought to supply the reference details to your employer, to resume employment. 

During this period the employer must take extra care to ensure no-one is discriminated against as a job applicant or employee because they are unable to show you their documents. For more information, please see the code of practice for employers: avoiding unlawful discrimination while preventing illegal working.

What is a Tier 2 migrant worker?

In simple terms, this is a migrant that is sponsored by the UK Employer under the Tier 2 visa scheme. This is the only main UK visa route for skilled workers coming to the UK where the migrant is offered employment, only migrant graduates that are highly skilled.

What are my rights as a Tier 2 migrant worker who has lost employment because of Coronavirus lockdown?

Redundancy or dismissal is likely to rise during COVID19 If you’re on a Tier 2 Visa and you have lost your job, it is the responsibility of your employer to inform the Home Office. 

You have the right to seek a new employer, or apply for further on the compelling ground either before you receive your curtailment letter or once you receive this letter. 

You have the right to notify the Home Office as to your intention to leave or stay in the UK you will have 60 days to either make a new job application or leave the country.

The COVID 19 situation has meant that many migrants workers will not be in a position to return back to their home country, you ought yo seek legal representation, and consider an application of humanitarian leave outside of the rules. 

What are my rights as a Tier 2 migrant told to work from home because of Coronavirus?

Your employer ought to have confirmed in writing to you that you are required to work from home for health and safety reasons, this meaning because of the risk of infection of COVID19.

You ought to request confirmation from your employer in writing as to whether or not they have notified the Home Office via the SMS as a Sponsor Licence holder that you are expected to work off-site and from home. Otherwise, where the Home Office has not released any guidelines for the monitoring, your employer could be in breach of Tier 2 & Tier 5 Guidance Rules 2019. 

The Home Office has relaxed the audit and compliance regulations as on the 31 March 2020 and will notify all Sponsor Licence holders when the measures will be active in the next 8 weeks

What are my rights as a Tier 2 migrant worker, if my employer has not paid my salary during Coronavirus?

You have the to request confirmation in writing from your employer what measures they have taken to ensure you will be paid, and when.

You have the right to request confirmation in writing whether or not your employer has informed the Home Office that your salary has not been paid because of COVID19 problems of trading faced by your employer.

What are my rights as an employer if I fail to see workers’ original documents?

Because of COVID-19, some workers may be unable to evidence their right to work. During this period, the employer must take extra care to ensure no-one is discriminated against as a job applicant or employee because they are unable to show you their documents. For more information, please see the code of practice for employers: avoiding unlawful discrimination while preventing illegal working.

How can employers help migrant workers?

The employer must contact the Home Office Employer Checking Service. If the person has a right to work, the Employer Checking Service will send you a ‘Positive Verification Notice’. This provides you with a statutory excuse for 6 months from the date in the notice.

What will happen to the right to work checks after COVID19?

After the COVID-19 measures end the Home Office will let employers know in advance when these measures will end. After that date, employers should follow the checking process set out in right to work checks: an employer’s guide.

The Home Office will carry out retrospective checks on existing employees who:

  • started working for employers during these measures
  • required a follow-up right to work check during these measures, employers should mark this check: “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.”

The will conduct checks retrospectively within 8 weeks of the COVID-19 measures ending. 

What can employers do to avoid penalties after COVID19?

Employers must keep records of checks made before and after COVID 19.

The Home Office will not take any enforcement action against an employer that has carried out the adjusted check set out in this blog, or a check via the Home Office, and follow this up with the retrospective check.

If, at the point of carrying out the retrospective check, the employer finds an employee does not have permission to be in the UK the employer must end their employment.

If the check the employer has undertaken during the adjusted period was done in the prescribed manner, the employer will not need to undertake a retrospective check. 

Please call 01634 202085 for further guidance 

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