Right to work checks - Gear up now for the changes ahead

In the current ‘new normal’ business climate it is fitting for employers to consider the administrative exercise that will come with the inevitable reversion of the temporary right to work (RTW) checks and the impending new points-based immigration system.

A reminder: the temporary COVID-19 RTW rules and upcoming points- based system

On 30 March 2020, UK Visas and Immigration (UKVI) made an adjustment to RTW checks to make them easier to carry out during the COVID-19 pandemic, which included conducting checks over video calls, the acceptance of scanned documents rather than originals and using the Employer Checking Service. The temporary nature of these measures was explicit, with UKVI indicating that employers would be forewarned of their cessation.

While an announcement to that effect is yet to be made, the encouragement for businesses to safely reopen is a likely precursor to reinstatement of the rules. From 1 January 2021, a points-based immigration system will apply to the UK, treating EU and non-EU citizens equally when  applying for visas. We explained the changes in this previous article, and employers should begin the groundwork for the necessary changes to their practices.

What should employers do now?

The following considerations should be made:

1. Which workers were subject to the temporary checks?

The portion of the workforce that started working during the implementation of temporary checks must be identified. Once safely practicable for the workplace in question, follow-up checks need to be conducted for these workers using the usual process set out in “An employer's guide to right to work checks”. After the temporary measures have ended, retrospective checks must be carried out within 8 weeks. Documents should be marked as follows:

“The individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.”

2. Has the Covid-19 pandemic affected the visa status of any workers?

Modifications to the immigration rules have addressed potential implications of the pandemic on visa applicants and temporary UK residents holding a visa including the ability for Tier 2 and Tier 5 applicants to start work with sponsoring employers ahead of approval of their applications. The Government has recently announced changes to the process for those who visas expired after 24 January 2020 and it may involve the need to apply for a Grant of Assurance (if you are not intending to stay in the UK permanently or are intending to ‘switch’ into a qualifying immigration category as there are certain exceptions) - see paragraph 5 for further details.  Those that currently have qualifying immigration status and need to extend, because they intend to stay long term, should apply as normal.

The usual follow up for workers with pending immigration applications should be scheduled. A full RTW check should be conducted once individuals receive biometric residence permit (BRP) details. Where difficulties reviewing original documents persist, using the online RTW option may avoid the need to use the temporary RTW process and then re-conducting the check using the standard process.

For those with extended leave to stay, employers should request that workers contact the Home Office for email verification and a further BRP and contact the Employer Checking Service to request a Positive Verification Notice. Check-ins should be scheduled for further confirmation of workers’ status ahead of expiry confirmed in emails or in BRPs.

3. Are you ready for the points-based system?

Employers who wish to recruit workers from outside  the UK after 1 January 2021 must apply to the Home Office to become an approved sponsor. In readiness for the application process, employers should consider:

• the eligibility of the business
• the type of licence required (either Tier 2 or Tier 5)
• the appointment of individuals to manage the sponsorship process the sponsorship management system
• the fee which applies depending on the type of licence and size of the business. 

Making an application as soon as reasonably practicable is crucial for avoiding pressures on talent recruitment and retention and possible subsequent business disruption. 

Notably, EU, EEA and Swiss citizens living in the UK are eligible to apply for work visas under the EU Settlement Scheme (EUSS) until 30 June 2021, providing exemption from the points-based system. It is in employers’ interests to provide information and support to workers to make applications under the EUSS by the deadline.

4. Do you have UK national workers posted in the EU?

The residency rights of UK nationals working in the EU are safeguarded until 31 December 2020. After this date, workers must apply for permanent residence status in the host country. Employers should assess their need to support workers in making such residency applications and/or to make arrangements to facilitate the return of workers in the EU. 

5. What is exceptional assurance?

The UK Government have announced that those applicants whose visa expired between 24 January 2020 and 31 July 2020 but were unable to leave either because of travel disruption, due to a contraction of COVID-19 or because doing so would breach self-isolation guidelines can apply for a Grant of Assurance under the ‘exceptional assurance’ rule. To do so, applicants will need to submit an application along with proof of disrupted travel or medical information. A Grant of Assurance will then offer limited leave protection until 31 August 2020. The Home Office have not made the Grant of Assurance a formal application route and the granting of the assurance under the exceptional assurance rule is discretionary.

In the interim, applicants (who are required to apply for exceptional assurance) should still seek to formalise their stay within the UK if they are intending to switch into a different category which would allow them to remain long term or make all reasonable attempts to leave the country.  Please contact us if any of your employees are affected by this due to its complexity and inconsistency of approach on occasion by the Home Office (and the fact that the change was only released at the end of July).

The importance of proper compliance with the RTW rules is underscored by the possible imposition of a fine of up to £20,000 – for each illegal worker – if checks are carried out improperly or not at all. Moreover, the continuity of workers from outside the UK and UK nationals posted in the EU is likely to be pivotal to maintaining service delivery to the standard expected by clients or customers. Employers should gear up now for the changes ahead.