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COVID-19: Update on Right to Work Checks

Posted on 31 March 2020

This guidance supersedes our post of 24 March 2020 explaining how to conduct right to work checks for new employees and as part of your annual checks during the COVID-19 measures.

The Home Office has published an update to its guidance on Right to Work checks on 30 March 2020 to reflect the difficulties COVID-19 is posing for the verification of original right to work documentation while lock-down and social distancing measures are in place.

From 30 March 2020 until the Home Office notifies employers that COVID-19 measures have come to an end, the Home Office will permit Right to Work checks to be made by video call by taking the following steps:

  1. The employee should send the employer a scanned copy or clear photograph of their original right to work documents by email or mobile app;
  2. The employer must arrange a video call with the employee and ask the employee to hold the original document to the camera while the employer compares the original seen by video link with the digital copy received from the employee;
  3. The employer must record on the scanned copy or label the scanned copy on their systems "Adjusted check undertaken on [insert date] due to COVID-19";
  4. Please note that if the employee has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme, then employers should undertake the online right to work checking service while undertaking the video call.  Prior to the call, the employee in these circumstances should grant employers permission to view their details online.

We would advise that employers keep a central list of all Right to Work checks undertaken from 30 March 2020 using video checks as set out above. This is because a follow-up check will be required after COVID-19 measures have come to an end. Employers will have eight weeks from the end date of COVID-19 measures to complete retrospective checks on original documents as follows:

  1. Obtain the original right to work documents;
  2. Check the documents' validity in the presence of the employee by:

(i) Checking that the documents are genuine and do not appear to have been tampered with;

(ii) Checking that the person providing them to you is the rightful holder by ensuring the employee's name is consistent across all documents;

(iii) Checking that the photograph and date of birth are consistent across all documents and consistent with the employee's appearance;

(iv) Checking that any visa permission has not expired; and

(v) Checking that any visa permission does not restrict the work you require the employee to undertake.

Take clear copies of the documents to sign, date and certify that you have seen the originals. For a new-hire employee whose Right to Work check was undertaken by video link between 30 March 2020 and the end of COVID-19 measures, employers must mark on the retrospective copies taken that "The individual's contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19."

When undertaking a retrospective check, if an employer finds that the employee does not have a permission to work in the UK, their employment should cease.

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.

Practical guidance for COVID-19
Read the latest COVID-19 related updates on our hub.

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