Hostile Measures Mini Series: Part 1: The end of COVID-19 temporary adjustments to Right to Work checks

The temporary adjustments to Right to Work (RTW) checks have been in place since 30 March 2020 and the end date for these adjustments has been changed three times. It seems that the 31 August 2021 is the final date when temporary COVID-19 checks will end (unless the government decided to change its mind again). 

As a reminder, the temporary adjustments to RTW checks are: 

From 30 March 2020 until 31 August 2021, employers must carry out the following steps in order to establish a statutory defence against a civil penalty: 

1. Request a scanned copy or a photo of the original documents via email or using a mobile app from the worker;

2. Arrange a video call with the worker and ask them to hold up the original documents to the camera and check them against the digital copy of the documents. You then record the date the documents were checked. This digital copy of the documents must be marked exactly as "adjusted check undertaken on [insert date] due to COVID-19"; 

3. If the worker has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system, the online right to work checking service can be used while on the video call if permission is given by the worker to view their details. 

After 31 August 2021, employers are not required to carry out retrospective checks on those who had the temporary checks between 30 March 2020 and 31 August 2021. Provided that the temporary adjustments COVID RTW checks were followed, the employer will maintain a defence against a civil penalty. If the employer was to undertake a retrospective check, they may risk exposing themselves to discrimination claims under employment laws. 

As before 30 March 2020, from 1 September 2021, employers must either check the worker's original documents or use the online service if a share code is given. 

If an employer is found to have hired an illegal immigrant without a defence (i.e. they did not follow the RTW checks procedure), the employer will be liable for a civil penalty of up to £20,000 per illegal migrant employed.