Complying with Right to Work Checks during COVID-19
All employers are required to carry out initial right to work checks on staff they intend to hire, in order to prevent illegal working.
If this check indicates that the employee’s permission to live and work in the UK is time limited, employers must recheck that individual’s right to work when this permission comes to an end. These follow up checks are designed to prevent people from working illegally or overstaying their visa.
Normally, employees will secure in-country visa extensions well in advance of their current visa expiring, and subsequently update their employers so their HR records can reflect the new expiry date.
In-time applications
It is important that an individual applies for an extension before their permission to be in the UK expires. This is known as making an ‘in-time’ application.
Filing an application in time means that person’s existing right to remain in the UK and visa conditions will continue until a decision has been reached by the Home Office.
However, the current COVID-19 crisis has led to a backlog of pending cases at the Home Office, meaning in-time applications for visa extensions are increasingly being left outstanding beyond the expiry date of the existing visa. This consequence of the current UK lockdown should ring alarm bells with all employers.
What does this mean for employers?
Although applicants are allowed to remain in the UK whilst their visa extension case is under review, employers have a specific responsibility to verify an employee’s immigration status with the Home Office when their current visa reaches its expiry date.
If an extension application is still pending at this point, employers must confirm their right to continue to employ the individual. If they are reasonably satisfied that the employee has submitted an in-time application (or made an appeal or administrative review) the employer’s statutory excuse will continue from the expiry date of their employee’s permission for a further period of up to 28 days. During this time, a positive verification check should be carried out using the Home Office’s Employer Checking Service.
By securing a positive verification notice from the Home Office, the employer will be able to continue to employ the individual for a further 6 months.
After the 6 month period, employers will then need to:
- Evidence the new visa status if available, or;
- Complete the verification process again if the case is still pending with the Home Office.
It is essential employers to conduct this check to demonstrate to the Home Office they are not employing workers beyond their current permissions.
Get support with immigration compliance
Businesses employing migrants on skilled work visas are subject to strict Home Office requirements, and failure to comply with your legal obligations as an employer can put your sponsor licence at risk, lead to disruptions to your business or even a civil penalty.
Smith Stone Walters is committed to helping businesses remain compliant with immigration legislation. Our team of advisers in London, New York, Hong Kong and Mumbai are experienced in offering immigration support in a range of areas.
Contact our team today to find out how we can help.
