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COVID-19: Right to Work Checks and Working from Home

Posted on 24 March 2020

This guidance explains how to conduct right to work checks for new migrant employees and as part of your annual checks remotely, as well as how to deal with working from home sponsor reporting. 

With most businesses and workplaces encouraging employees to work from home whenever possible to reduce the risks of exposure to COVID-19 in the workplace, usual practices which require face-to-face contact are proving challenging. 

Right to Work Checks

To date, there has been no notification from the Home Office of any relaxation of the current framework for right to work checks.  While working from home measures are in place, it may seem like an easy solution to accept scanned copies temporarily until such time that the original documents can be seen.  However, this process will not provide employers with a statutory excuse against a fine for illegal working should it later come to light that an individual does not have a right to work. 

To establish a statutory excuse against a fine, employers should continue to conduct right to work checks in line with Home Office guidance. This check can be done by the employer by meeting the employee in person and seeing the employee's original right to work documents, comparing the likeness of the photographs on the passport and visa vignette and BRP card (if applicable) with that of the employee, and then taking copies to certify, sign and date to keep on file.  However, it can also be done online by using the UKVI's Online Right To Work Service.

(i) Online Right to Work Checks

The Home Office recommends that while offices are closed, employers use the UKVI Online Right To Work Service to verify a new employee's immigration status and combine this with a video link to assess if the individual in question is the same person on the photograph on the online right to work service.  If the employer is satisfied the individual seen by the employer via the video link is the same person as on the online right to work photograph, this would provide a statutory excuse against a penalty if it came to light the individual was working illegally.

Please note that in order to use the UKVI Online Right To Work Service, the migrant employee must have one of the following:

  • A biometric residence permit ("BRP");
  • A biometric residence card;
  • Pre-Settled Status or Settled Status issued under the EU Settlement Scheme.

The migrant employee will need to know the BRP number, biometric residence card number or have access to their EU Settlement Scheme account to start the online service process.  To use the service, the migrant employee must enter their details into the Online Right to Work Service for Employees and view their own right to work record.  Once this has been done, they will be able to provide employers with a "share code". 

Once the share code has been received by the employer, the employer can conduct the online right to work check as follows:

   (i) Enter the following details into the Online Right to Work Service for Employers:

  • The share code; and
  • The migrant worker's date of birth.

   (ii) View the photograph on the online right to work record and be satisfied that this is migrant employee presenting themselves for work.  While working from home due to the COVID-19 pandemic, employers should have a video call with the migrant employee while the right to work check is taking place so that the comparison of the online photograph and the migrant worker can take place simultaneously.

   (iii) Check on the online record that the migrant employee is entitled to undertake the work in question and check that migrant worker's visa is still valid.

   (iv) Retain a clear copy of the online right to work check by printing, screenshotting or taking a PDF of the record and storing this securely either electronically or in hard copy.  If there is no date on the print, screenshot or PDF, then employers should sign and date the record to keep on file.

   (v) Make a note in your systems of the end date of the visa and make appropriate reminders ahead of the expiry date for the visa to be renewed before expiry.  

(ii) Employees not under immigration control

For British nationals and EU nationals who have not applied under the EU Settlement Scheme, to establish a statutory excuse against a fine for illegal working, employers would need to see original right to work documents. While this remains practicable and safe, employees can send their original right to work documents to employers by courier or post and once received, employers would need to set up a video link with the employee to be satisfied the individual seen by the employer via the video link is the same person in the right to work documents.  Employers would then take copies as usual to sign, date and certify that the original document has been seen and return the documents to the employee by post or courier.

If it becomes not possible or too risky to receive original documents by post, the only other option would be to see the original document and the employee by video link and keep a copy of the document on file until such time that the original can be seen. As mentioned above, this would not provide a statutory excuse against a fine should it transpire that the worker does not have a right to work in the UK, but it would be the most pragmatic course of action in the circumstances.  It will be important to conduct the check properly once it is possible and safe to do so, and therefore employers should keep a list of all employees who would need to provide their original documents once offices reopen.

Working from home

It is ordinarily necessary to report a change in work location for any employee sponsored under Tier 2 or Tier 5 (apart from Tier 5 Youth Mobility).  However, if employers have closed their offices and employees are working from home, it is not necessary to report the home work location for Tier 2 or Tier 5 employees provided employers have specific policies regarding working from home which applies to their sponsored workers (this could be a stand-alone policy or it could be incorporated into contacts) and appropriate records are kept on the sponsored workers' HR files namely, the home address, the start and end date of the period of working from home, a note to confirm that work from home is due to the COVID-19 crisis, and the work from home policy).

Please do not hesitate to get in touch with your contact in the Immigration team at Mishcon de Reya LLP should you have any questions or require further guidance.

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