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20 May 2020
Conducting fully compliant RTW checks without face-to-face contact
Temporary adjusted procedure during COVID-19 pandemic
What happens if employers employ someone to work illegally?
Concession for Tier 2 and Tier 5 applicants
Other important points to note during COVID-19 pandemic
Under the Home Office's current guidance for right to work (RTW) checks, it is possible to conduct a fully compliant initial or follow-up RTW check without seeing an individual face to face. Where this is impossible during the COVID-19 pandemic, the Home Office has instituted a temporary adjusted procedure, which must be backed up by retrospective checks in due course. This article summarises the options and procedures and highlights some general points to be aware of during the pandemic.(1)
Remote RTW checks for individuals holding a BRP or pre-settled or settled status under the EUSS
Individuals with a biometrics residence permit (BRP) card or status under the EU Settlement Scheme (EUSS) can conduct an online RTW check with their employer via a video call. The employee must give their permission for an online RTW check to be carried out. If permission is not given, a manual check must be undertaken instead.
First, the individual accesses their online immigration record at www.gov.uk/prove-right-to-work. They must follow the prompts to create a single-use share code and provide their employer with this, either as an email generated through GOV.UK or by them noting the share code and advising their employer of it. The share code must be used within 30 days of its creation. The Home Office will have a clear audit record of the time and date that employers use the code to carry out an RTW check. To ensure that employers are covered by the excuse against having to pay a civil penalty for illegal working, they must ensure that they do the online check before the person actually starts work.
Employers must use the employer's link at www.gov.uk/view-right-to-work to log in with the code. Viewing the individual's record is insufficient. Once the employer has logged in, they can view the individual's profile along with what employment they can undertake on their visa status. Employers should check the photograph depicted and any employment restrictions that are advised on their record. Employers should log in while the person is present via a live video call (eg, via Skype or FaceTime) in order to confirm that they are the person depicted on their online profile, just as employers would for standard face-to-face RTW checks.
Employers should keep a copy of the online check (eg, by taking a screenshot of the video call open concurrently with the online RTW check screen showing the person's details). Employers can save this as a hard or soft copy but it should be in an unalterable format, dated and clearly signed or marked by the person taking the check so that it is clear that they are an authorised and appropriate employee of the company, taking the check on or before the individual's first day of employment (in the usual way for a valid RTW check).
Remote RTW check for everyone else
For individuals who have no BRP card or status under the EUSS (eg, British nationals), employers can conduct the RTW check if the individual is in possession of their original evidence of RTW (eg, their current passport) and check its validity in the usual way but via a video call. The same records must be retained (ie, certified dated copies) either in hard or soft copy. The person conducting the check must see the original document to verify it against the video call. This option may prove unfeasible in many cases during the COVID-19 pandemic due to logistical and security issues relating to the movement of original documents.
On 30 March 2020 the Home Office published an adjusted procedure to be used as a workaround for the time being if carrying out a fully compliant RTW check is impossible.
Under the adjusted policy, employers should:
If the person cannot show their documents (eg, because they have an outstanding application with the Home Office), employers should contact the Employer Checking Service and obtain a positive verification notice (PVN). This will provide a statutory excuse for six months. After this time a further PVN will be required unless the worker is able to satisfy a fully compliant RTW check or an RTW check under the adjusted procedure in the interim.
Employers should retain a log of all RTW checks conducted using the adjusted procedure because a retrospective RTW check must be carried out for all of the employees for whom the employer has used the adjusted procedure. This must be done within eight weeks of the Home Office announcing that the adjusted procedure has ended.
When completing a retrospective RTW check, employers should certify a copy of the original documents in the usual way, including the additional wording "The individual's contract commenced on [date]. The prescribed RTW check was undertaken on [date of retrospective check] due to COVID-19".
Both checks must be retained on file for record-keeping compliance purposes.
If, at the stage of the retrospective check, it comes to light that an employee has no RTW, the Home Office expects the employer to end their employment.
Employing someone to work illegally will generally make an employer liable for a civil penalty and a fully compliant RTW check is the only way to be sure of reducing the £20,000 penalty to £0. Should the Home Office deem that the employer knew or should reasonably have known that the individual was working illegally, this would be dealt with as a criminal matter, which can attract an unlimited fine and up to five years' imprisonment. Thus, employers must have robust systems in place for compliance.
The Home Office can reduce the penalty where there are mitigating factors but no fully compliant RTW check. Usually, the Home Office would reduce the penalty by £5,000 for each of the following mitigating factors where the employer:
Where it is a first breach, it is possible to reduce the penalty to £0. However, if it is not a first breach, the penalty usually cannot be reduced to less than £5,000 per illegal worker. It cannot be guaranteed that the Home Office would extend its discretion to reduce the penalties for reasons beyond those listed.
Any civil or criminal penalties imposed may also affect an employer's sponsor licence. Therefore, employers must take all practical steps to ensure that all employees have the necessary RTW in the role for which they have been hired.
On 14 April 2020 the Home Office announced a concession enabling Tier 2 and Tier 5 applicants to start work with their sponsoring employer ahead of their application being approved, provided that certain conditions are met (for further details please see "Guide to immigration implications of COVID-19 for employers").
However, the Home Office has issued no corresponding guidance covering RTW requirements where the concession is used.
In the absence of a published policy from the Home Office, in addition to the documentation that employers would normally keep as part of their record-keeping duties as a sponsor (ensuring that these documents are in line with the information on the assigned certificate of sponsorship), employers should keep:
As a backup, employers should schedule reminders to follow up with the applicant in the same way as they would for any other employee with a pending immigration application.
Employers should carry out a full RTW check as soon as possible once the person has their new BRP details, adding wording such as:
the individual's contract commenced on [insert date] under the COVID-19 concession for individuals with a pending [Tier 2 or Tier 5] application for further leave to remain, published by the Home Office on 14 April 2020. The prescribed right to work check was undertaken on [insert date] following the availability of [his/her] BRP.
Practically, employers may prefer to use the online RTW check option if there are still issues with reviewing original documents at the time the person receives their BRP details. This would avoid having to use the COVID-19-adjusted RTW process and then having to do a further check once the adjusted procedure has ended and the original BRP can be presented.
In the event that the application is unsuccessful, the Home Office expects employers to stop sponsoring the person and for them to stop working for the employer. Employers should also consider seeking employment law advice in this situation.
Employers should continue to bear in mind that according to the Home Office's current published guidance, only those documents on the Home Office's RTW checklist are acceptable evidence of RTW, even if employers are using the temporary adjusted procedure. The situation has been complicated by the introduction of the concession for Tier 2 and Tier 5 migrants, and it is hoped that further guidance will be forthcoming in the near future to cover these people.
Employers should also be cautious not to make arrangements during the COVID-19 pandemic that they may be held to know, or to have reasonable cause to believe, that constitute illegal working.
Less obvious examples of illegal working that may occur include:
Employers must be aware of the possibility of impersonation in the current circumstances, particularly if the copies of documents or image on the video call are unclear. Retrospective checks should be carried out on time and careful attention must be paid to ensure that the employee is the person depicted in the original documents they present.
For further information on this topic please contact Andrew Osborne or Naomi Hanrahan-Soar at Lewis Silkin by telephone (+44 20 7074 8000) or email (email@example.com or firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) This article is being maintained on an ongoing basis here.
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