Right To Work: Right To Change Policy Now?

A revision to the UK Government’s right to work policy framework is causing bemusement among some businesses – primarily because it may be seen to override some of the safety principles behind the ongoing Covid-19 restrictions, says Kelly Hardman, an Edinburgh-based Solicitor at global immigration law firm Fragomen. She offers her take on how the Home Office is choosing not to be a flexible friend to prospective employers…

From May 17th this year, businesses across the UK will need to resume the practice of physically checking the documentation of new employees to confirm their right to work in this country.

As a temporary measure amid the pandemic constraints – specifically the requirements to work from home and avoid office environments whenever possible – it has been acceptable for employers/employees to complete this formal process over video calls, or via the Home Office’s Online Right to Work check platform (if the employee meets the requirements).

The Home Office earned plaudits for introducing this approach, which removed the obligation for businesses to subsequently repeat these checks with direct possession of the relevant paperwork.

Which makes their decision to revert now to the previous arrangements – requiring individuals either to meet their prospective new employers at their work locations, or to post their documentation to the business (if they don’t meet criteria for the online check) – all the more puzzling.

This adds several additional considerations including employees needing to go out of their way to make arrangements for important personal documents to be sent via secure/recorded delivery, as well as employers arranging return via a secure method. And, in the event a document gets misplaced/delayed in the postal system, the employee is potentially not going to be able to start work on time.

It means that every time a person – in particular UK nationals – starts in a new post, they will either need to go to the work location on, or shortly prior to day one to present their passport or send it ahead so the employer has physical possession of it for checking (whilst still needing the employee to join a video call).  For once UK immigration policy will have less of an impact on overseas workers, many of whom will have their right to work checked online, without a physical document.

The Government presumably chose May 17th as the reversion date because that is when Stage 3 of the easing of the lockdown restrictions goes live in England (it’s also the date when the rules are due to be further eased in Scotland).

In any event, the timing is out of step with the plans of many employers who are not planning to reopen offices until the autumn.

The update is creating confusion and is putting pressure on companies to find a solution to ensure they remain compliant – this being a time of year when many big companies have large intakes of interns and graduates. For those who are making the effort to get these incoming groups an in-office experience, they are having to contemplate front-loading right-to-work checks earlier than planned so that they fall within the pre-May 17th requirements.

Put simply, it means people may be unnecessarily exposed to Covid transmission at in-person meetings or in the sharing of physical documents – it is also prompting many companies to reconsider their remobilisation plans to ensure the staff responsible for right to work checks are willing to be physically present; if they’re not, it raises challenges associated with re-training others in a very short period of time.

The change, incidentally, would likely impact UK nationals to a greater extent – many overseas people will hold Biometric Residence Permits or status under the EU Settlement Scheme, allowing them to complete right to work checks without the employer seeing their physical document.

What makes the decision perplexing for some is that it’s inconsistent with Government policy on working from home meantime if possible and presents an avoidable risk of increasing covid transmission.

The Home Office is in danger of losing some of the goodwill it earned for its flexible approach to this issue at the outset of the pandemic. Will they have a last-minute policy rethink, deferring implementation of this decision at least until people are back in the workplace?

Edinburgh-based Kelly Hardman is a Solicitor with immigration experts Fragomen, a global law firm. She advises Scottish companies and other firms on immigration strategies and issues. In January 2020, Kelly was a speaker at Holyrood - ‘The UK’s Post-Brexit Immigration System: Implications for Scotland’. She holds a Master of Laws (LL.M) in Advanced Legal Practice (in employment law). Kelly is responsible for co-ordinating and managing Europe, Middle East and Africa (EMEA) immigration programmes on behalf of some of Fragomen’s largest clients.

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