RIGHT TO WORK CHECKS – GEARING UP FOR CHANGES UP AHEAD

The temporary right to work (RTW) checks were amended by the UK Visas and Immigration (UKVI) on March 30, 2020 in order to make them easier to carry out during the COVID-19 pandemic. This originally included conducting checks over video calls, accepting scanned documents in lieu of originals and using the Employer Checking Service. The employees were made explicitly aware of the temporary nature of these measures, as well as their cessation in the immediate future.

Though a formal announcement underlining this amendment is yet to be made, the reinstatement of rules shall be preceded by an encouragement for businesses to reopen safely. From January 01, 2021, a points-based immigration system shall be applicable to the UK and EU and non-EU citizens shall be treated equally when applying for visas. The employers are urged to begin the groundwork to incorporate the future changes through the points-based system as soon as they can in order to avoid any last minute delays.

It is inevitably recommended that the employers should consider and incorporate all administrative exercises which are expected through the reversal of the temporary Right to Work (RTW) checks as well as the new points-based immigration system.

The following steps are recommended for the employers in the present scenario:

1. Identification of workers subjected to temporary checks:

Workers who started working during the temporary checks need to be identified and followed up with as per the usual process. Periodical checks must be implemented and documented for all intensive purposes, after the temporary measures have ended or been withdrawn.

2. Effect on the Covid-19 pandemic on the visa status of workforce

The implications of the pandemic on visa applicants and temporary UK residents have been addressed in the form of various modifications to the immigration rules. Recent announcements made by the Government have officially notified process changes in visa applications for those whose visas expired after January 24, 2020. For those who do not intend to stay permanently or intend to switch to qualifying immigration categories, there may be a requirement to apply for a Grant of Assurance. Application process shall stay normal for those who, at present, qualify as immigrants and need to extend their stay.

All pending immigration applications should be scrutinised and further follow-ups should be scheduled with the applicants. Further RTW checks should be scheduled once biometric residence permit (BRP) details are received / updated for the individuals.

Employers should request workers having an extended leave to stay to contact the Home Office for email verification and a further BRP and contact the Employer Checking Serviceto request a Positive Verification Notice.

3. Readiness for the points-based system

Employers must apply to the Home Office to become an approved sponsor if they intend to recruit workers from outside the UK after 1 January 2021. The following should be considered to prepare oneself for the process:

• eligibility of the business
• type of licence required (Tier 2 or Tier 5)
• appointment criteria of individuals to manage the sponsorship process and the individuals appointed
• application fee (depending on the type of licence and size of the business)

It is imperative that the application be reasonably practicable to avoid additional pressure on talent recruitment and any last minute hassles causing adverse business impact.

Under the EU Settlement Scheme (EUSS), EU, EEA and Swiss nationals residing in the UK are exempted from the points-based system, and thus can apply for work visas until 30 June 2021. Providing information and support to workers for making timely applications is at employer’s discretion.

4. UK national workers in the EU

UK nationals working in the EU shall have residency rights in the EU till December 31, 2020. Thereafter, it is mandatory for the workers to apply for permanent residence status in their host country. Here employers can step in to assess any support required by their workers in making such residency applications and/or to facilitate the return of workers in the EU.

5. Exceptional assurance

According to Government announcements, applicants who couldn’t leave the UK, after visa expiry between Jan 24 2020 and July 31 2020, due to travel disruption caused by the Covid-19 pandemic, can now apply for a Grant of Assurance under the ‘exceptional assurance’ rule. This procedure entails the applicants requiring to submit an application along with proof of disrupted travel or medical information. Thereafter, a Grant of Assurance shall be sanctioned to offer a limited leave protection until August 31, 2020. However, this Grant of Assurance shall be offered only under exceptional circumstances and solely at the discretion of UKVI.

Applicants intending to switch into a different immigration category while depending on an exceptional assurance support still need to formalise their stay within the UK. The applicants are advised to contact various consulting organizations in this regard if they have been affected by these processes due to various inconsistencies or complexities. It is imperative that proper compliance be maintained as per the RTW rules. This is further emphasized and underscored by the possible imposition of a fine of up to £20,000 for each illegal worker in case of improper or non-existing checks.

Maintenance of service delivery standards as expected by clients or customers mandates that the continuity of workers from outside the UK and UK nationals posted in the EU is important. Employers must be ready now for the impactful changes up ahead.