Immigration to the UK and the right to work here is a hot political potato.
The Home Office has published a new Right to Work Checklist Template for employers. This covers both physical checks and online checks. Download the document here.
Separately the Home Office has released a new right to work video to assist UK businesses with changes to right to work checks from 1 July. The video can be accessed on the Home Office You Tube Channel.The short video guides viewers through the new right to work check process, including details of applicant information required for both types of check and links to further information.
When are the temporary adjustments to right to work checks (introduced due to the Covid-19 pandemic) ending?
On 26 August 2021, the Home Office confirmed that digital Right to Work checks will remain in place until 05 April 2022. The updated guidance is available here.
Following the lobbying efforts of the REC and many of you, the Home Office previously announced that the end to the adjusted right to work checks (RTW) would be delayed further until 31 August 2021, having originally made the decision to end the adjusted checks on 17 May, which was pushed back initially to 21 June. The Home Office’s decision to extend the digital RTW checks until 05 April 2022, is a result of the positive traction and responses received about the process for checking RTW documents remotely. In additon, they believe that deferring the date will support businesses with the implementation of long-term working practices post the pandemic.
Businesses and organisations will be able to continue to use the digital RTW checks introduced at the start of the pandemic to check RTW until 05 April 2022. From 06 April 2022, you must follow the prescribed checks set out in the Home Office guidance, Right to Work Checks: an Employer’s Guide.
This means that when carrying out a document check you must be in possession of the original documents, and you can no longer accept a scanned copy or a photo of original documents.
Alternatively, where applicable, you can use the Home Office right to work online service where information is provided in real-time direct from Home Office systems and does not require you to see or check the individual’s physical documents. However, employers cannot insist individuals use this service or discriminate against those who choose to use their documents to prove their right to work.
Whilst the ability to perform an adjusted check will cease from 05 April 2022 , the Home Office has decided to remove the requirement to conduct a retrospective RTW check for those who did have the adjusted check done. This means there is no requirement to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 05 April 2022 (inclusive). Businesses will maintain a defence against a civil penalty if the check undertaken during this period was done in the prescribed standard manner set out in the COVID-19 adjusted checks guidance.
After considering our strong representations and feedback from other stakeholders, the Home Office have acknowledged the benefits that the adjusted checks give to employers and workers. They are continuing to evaluate technology in supporting the RTW process going forward. They are also thinking of introducing a digital right to work system in the future so that RTW checks can be carried out remotely for UK and Irish citizens, as well as those who are unable to use the current online checking service. Further information is available on GOV.UK
What was the Right to Work Check process before the pandemic and how do I carry out the checks correctly?
From 1 September 2021 the following process shall apply:
When checking eligibility to work in the UK you must follow the three-step process set out by the Home Office for every individual whom you intend to employ. If you follow all the steps set out below you will have a “statutory excuse” from prosecution. We have taken the following from the Home Office guidance – An employer’s guide to right to work checks.
Step 1: You must obtain the work-seekers original documents. The work-seeker must provide you with EITHER one document from LIST A or any of the documents or combination of documents from LIST B. You must only accept original documents – photocopies or electronic scans are not acceptable.
Step 2: You will need to take reasonable steps to check that the document is valid, and you should be satisfied that the work-seeker is the person named in the document. You should also check that the document allows the work-seeker to do the work in question.
For each document which has been presented to you should check all the following:
- check any photographs are consistent with the appearance of the work-seeker;
- check any dates of birth listed are consistent across documents and that you are satisfied that these correspond with the appearance of the work-seeker;
- check that the expiry date for permission to be in the UK has not passed;
- satisfy yourself that the documents are valid and genuine, have not been tampered with and belong to the holder; and
- if given two documents which have different names, ask for a further document to explain the reason for this. The further document could be a marriage certificate, a divorce decree absolute, a deed poll or a statutory declaration.
Step 3: You must make a copy of the relevant page or pages of the document in a format which cannot be subsequently altered. This can include a photocopy or a scan. If you take an electronic copy, this must be in a non-rewritable format.
Where the work-seeker has provided you with a passport you must photocopy or scan the following:
any page with the document expiry date, the holder’s nationality, date of birth, signature, leave expiry date, biometric details, photograph and any page containing information indicating that the holder has an entitlement to enter or remain in the UK and undertake the work in question.
For all other documents, you must make a clear copy or scan of the document in full, including both sides of a Biometric Residence Permit.
You must retain the copies for not less than 2 years after the employment has ended. You will not have the statutory excuse if:
- you cannot provide a record of having carried out the document checks before recruitment; or
- you have accepted a document which clearly does not belong to the person presenting the document; or
- you have conducted a check and it is reasonably apparent that the document is false; or
- you have accepted a document which clearly shows that the person does not have permission to work in the UK and/or carry out the type of work you are offering.
Face to face checks:
The guidance states that the original documents must be seen (unless the you have used the Employers checking service) and that you should check that they are consistent with the appearance of the person presenting the document. When you are checking the validity of documents you must ensure you do this in the presence of the holder. This can be a physical presence in person or via a live video link. In both cases you must be in possession of the original documents.
List A and B documents:
The documents that establish an individual’s right to work in the UK are split into two lists:
- List A documents show that the holder has an ongoing right to work in the UK i.e. that s/he is not subject to immigration control, or has no restrictions on their stay in the UK.
- List B documents demonstrate that the person has been granted leave to enter or remain in the UK for a limited period of time. List B documents will provide you with the statutory excuse for up to 12 months from the date on which you carry out the checks, if you correctly follow the 3 step process set out above.
If a work-seeker provides documents from List B, you should carry out specified document checks before employment of the individual begins and then carry out follow-up checks of the same kind at least once every 12 months. You should ensure that the date on which the check was made is recorded.
If you have carried out these document checks and found that the work-seeker is not allowed to work, then you must refuse to employ or engage them. It is up to the person seeking work to prove that they have the right to do the work on offer.
If you have carried out repeat checks and found that an existing employee or worker is no longer allowed to work in the UK or to carry out the work on offer, then you will no longer have the statutory excuse. If you continue to employ a person who no longer has the right to work in the UK, you will be committing the criminal offence of knowingly employing an illegal worker. There is a tension between immigration law and employment law, particularly where you have to dismiss a person because they no longer have the right to work in the UK. Therefore, it is worth building into your checking system sufficient time to meet the notice provisions set out in the employee’s/ worker’s contract.
What is the new immigration regime after Brexit?
Free movement with the European Union ended on 31 December 2020 and there are new arrangements for EU citizens. On 19 February 2020, the government announced details of the ‘new’ post-Brexit UK immigration system with substantial changes to the rules governing entry to the UK due to take effect from 1 January 2021. More details were announced on 13 July 2020. Most changes came into effect for non–EEA/Swiss citizens, and for EEA/Swiss citizens who are not covered by the EU Settlement Scheme, from 1 January 2021. Government maintains that the introduction of the points-based system treats EU and non-EU citizens equally and aims to attract people who can contribute to the UK’s economy. But Irish citizens can continue to freely enter, live and work in the UK.
For more details please see here.
How do I check a European worker’s right to work from 1 July 2021?
On 11 June 2021, the government published guidance on right to work checks from 1 July 2021. From this date, the process for completing right to work checks on EU, EEA, and Swiss citizens will change. Employers will no longer be able to accept EU passports or ID cards alone as valid proof of right to work, except for Irish citizens. They must provide evidence of their immigration status and the list of authorised documents are here
The guidance sets out how both the manual’ and ‘digital’ right to work processes will work and the list of the acceptable documents that can be used. For manual checks, below are some of the acceptable documents.
- a current passport endorsed to show that the worker can stay in the UK and is allowed to do the type of work
- a current Biometric residence permit issued by the HO that indicates that the worker can currently stay in the UK and is allowed to do the work
- a document issued by the HO showing that the worker has made an application for leave to enter or remain on or before 30 June 2021 together with a Positive Verification Notice the HO Employer Checking Service
- a Positive Verification Notice issued by the H O Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work
- Irish passport or passport card
- Frontier Worker Permit
- Documents issued by the Crown Dependencies EU Settlement Schemes, when verified by the relevant Home Office (HO) checking service
- A current document issued by the HO to a family member of an EEA or Swiss citizen, and which indicates that the holder is permitted to stay in the United Kingdom for a time-limited period and to do the type of work
The Guidance states that employers do not need to retrospectively check the status of any EU, EEA, or Swiss citizens employed before 1 July 2021.
Government has also published a guide for EU, EEA and Swiss citizens on viewing and proving their immigration status (eVisa). It explains how people can view and prove their immigration status, update their details, what they should expect when crossing the UK border and how to get help accessing their immigration status.
What is the EU Settlement Scheme?
The rights and status of EEA citizens living in the UK will remain the same until 30 June 2021.
Those EEA citizens already in the UK and those EEA citizens that arrived in the UK by 31 December 2020 will be eligible to apply to the EU Settlement Scheme for settled (indefinite leave to remain) or pre-settled (limited time to remain) status up to 30 June 2021. If they fail to make an application for settled or pre-settled status, they will have to leave the UK or apply for leave to remain under the new immigration system introduced on 1 January 2021.
If the EEA person has previously lived in the UK with indefinite leave to remain but they have been out of the UK for more than 2 years, they will have to contact the Home Office to see if they are eligible to return on the same terms or whether they have to apply for a status decision via the EU Settlement Scheme.
Pre-settled status, if granted, will allow an EEA citizen to stay in the UK for 5 years. The EEA citizen can then apply for settled status if they meet the requirement of 5 continuous years living in the UK.
Successful applicants will be given digital proof of their status. Paper copies will only be given in limited circumstances. The worker will be able to prove their right to work online.
There are some people who won’t need to apply to the EU Settlement Scheme as can be seen in the list here including Irish citizens.
What happens if a worker fails to apply to EU Settlement Scheme before the deadline?
Until 31 December 2021, Home Office has put in place some transitional measures to cover existing employees or workers that fail to apply under the EUSS. Home Office confirmed that if you discover that the individual does not have the right status, you don’t have to terminate their employment immediately because there is scope to make a late application. To benefit from this transitional measure, the EEA citizen must have been employed by you, in the UK before the end of the grace period (30 June 2021).
If the above situation arises, you should to the following:
1. Advise the individual they must make an application to the EUSS within 28 days.
2. They must then provide you with confirmation that they have made their application. They will have been issued with either:
• An EUSS Certificate of Application (CoA), or;
• An EUSS email (or letter if they submitted a paper application), confirming receipt of their application
3. If they do not make an application within 28 days, you must take steps to cease their employment in line with right to work legislation.
4. Once you have confirmation that they have made a late EUSS application, you must request a right to work check from the Home Office Employer Checking Service (ECS). When contacting the ECS, you may be asked to provide evidence of the start date of the individual’s employment (such as a copy of the initial right to work check).
5. Where an application has been made, the ECS will give you a Positive Verification Notice (PVN). You must retain the PVN and a copy of the individual’s CoA, or evidence of application to the EUSS, along with the initial right to work check carried out on or before 30 June 2021. These will then provide you with a statutory excuse against a civil penalty for six months. This allows sufficient time for the application to be concluded and enables the individual to maintain their employment with you during that time.
6. Before the PVN expires, you must do a follow-up check with the ECS in order to maintain your statutory excuse against a civil penalty. If the individual has been granted status before the PVN expiry date, they can prove their right to work to you using the Home Office right to work online service.
7. If the follow-up check confirms that the application is pending, you will be given a further PVN for six months and would then repeat step 6 until such time as the application has been finally determined. If the follow-up check confirms the application has been finally determined and refused, then you will not be issued with a PVN and you must take steps to cease the individual’s employment.
8. You must make a copy of their confirmation of application and retain this with the response from the ECS, along with their initial right to work check carried out on or before 30 June 2021, to have a statutory excuse against liability for a civil penalty.
Please note that the transitional measure does not apply to new employees or workers that are recruited after 1 July 2021. So where an individual needs to make a late application to the EUSS in that scenario, the Home Office advises employers not to start the employment until EUSS status has been granted and checked.
Please see here for more details.
What should I do if a candidate has applied for the EUSS but cannot give me a share code because their application or appeal is still pending?
Government’s guidance states that:
EEA citizens, and their family members, who have made an application to the EUSS up to and including 30 June 2021 and have not yet been granted status, can continue to live their life in the UK as now and maintain a right to work until their application is finally determined. This includes pending the outcome of any appeal against a decision to refuse status.
From 1 July 2021, EEA citizens with an outstanding application to the EUSS made up to and including 30 June 2021 will be issued with either:
- An EUSS Certificate of Application (CoA), or;
- An EUSS email confirming receipt of their application
The CoA will be issued digitally, enabling the candidate to use the online right to work service to evidence their right to work. You should check with the candidate to see if they can provide you with a share code. This will mean that you can check their right to work immediately rather than having to contact the Employer Checking Service (ECS). The online service provides confirmation of their right to work and advises when a follow-up check is required.
However, there may be instances where the individual has only been issued with a paper CoA or email confirming receipt of their EUSS application. In these circumstances, you must request a right to work check from the ECS, using the online form ‘request a Home Office right to work check’.
You must make a copy of their EUSS CoA or their EUSS email receipt and retain this with the response from the ECS to have a statutory excuse against liability for a civil penalty.
What is a reasonable period for Right to Work checks conducted before 1st July and an assignment starts after 1st July?
When the REC asked Home Office about whether retrospective checks are required for candidates who have had their right to work checked before 30 June but who have not started working on 1 July, the answer was that “no retrospective checks were needed” if the check was carried in a “reasonable time” before the start of the assignment.
How does the Frontier Worker Permit apply to EU nationals?
The permit is only for EU nationals who were in the UK on or before 31 December 2020 and who do not ordinarily reside in the UK. It does not require the EU national to be applying for work with minimum salary requirements or to have specific qualifications. This is more straight forward than the points-based system. If the EU national has periods of unemployment whilst in the UK, or unemployed when making the application, this may impact their eligibility for the permit.
The applications for the frontier permit are free and are made by the individual directly with no employer sponsor required.
It is important to note that from 1 July 2021 any frontier worker will need a permit to enter the UK to work.
Further information on eligibility and the application process can be found on Frontier worker permit for EU citizens (publishing.service.gov.uk)
Whose responsibility is it to check a worker’s eligibility to work in the UK?
An employer may be liable to a civil penalty if they employ someone who does not have the right to work or commit a criminal offence if they employ someone that they know/reasonably could know does not have the right to work in the U.K. An illegal worker is someone who:
- is subject to immigration control; and
- is aged over 16; and
- is not allowed to carry out the work in question because either they have not been granted leave to enter or remain in the UK or because their leave to enter or remain in the UK:
- is invalid; or
- no longer applies (e.g. because it has expired or been revoked);or
- is subject to a condition preventing them from accepting the employment.
Section 15 of the Immigration, Asylum and Nationality Act 2006 makes it the employer’s obligation to check an individual’s right to work in the UK. Your obligation to check the right to work depends on the capacity in which you act.
Acts as an employment agency when introducing individuals to work directly for a client. In these circumstances, the client will be deemed to be the ‘employer’ for the purposes of Section 15 and so will be legally responsible for ensuring that the work-seeker has the right to work in the UK. However, an agency may be contractually obliged to carry out right to work checks, for example in a service level agreement. There are also likely to be reputational issues for an agency that introduces a work-seeker who does not have the right to work in the UK. Therefore, although the client is legally obliged to carry out the right to work check, it may be worthwhile considering doing such checks even when not legally required to do so. Furthermore, under Conduct of Employment Agencies and Employment Businesses Regulations 2003, if an agency introduces someone that will be working with vulnerable people they must ensure that they have the authorisations required by law to work in that position and that will include right to work checks as the Individual must have the right to reside and work in the UK.
Acts as an employment business when introducing or supplying temporary workers to clients. In these circumstances the business will be deemed to be the ‘employer’ for the purposes of Section 15 and it will be your legal responsibility to check the work-seeker’s eligibility to work in the UK. Importantly, this will not make the employment business the employer for employment law purposes. The definition of employment is defined as someone who has a contract of employment. However, agency workers typically work through a contract for services. Although employment status has been challenged in court throughout the years, we strongly advise that employment businesses continue to conduct these checks as the deemed employer under the Act so that the business will have the protection of the statutory excuse. For further information on employment status, please see here.
Penalties for failing to check the right to work:
For a first breach, the employer can be fined a penalty of up to of £20,000 per illegal worker.
The “statutory excuse”:
If you correctly carry out the document checks required, you will have a legal (i.e. “statutory” excuse) against payment of a civil penalty even if you employ an illegal worker provided that you do not knowingly illegally employ that person. However, if you know that you are employing a person who does not have the right to work in the UK then you will not have the statutory excuse, even if you have carried out the correct document checks.
Under the Immigration Act 2016, employers may also be liable to criminal prosecution if they know or have reasonable cause to believe that an employee is an illegal worker.
Do I have to check everyone’s right to work in the UK?
Your obligation to check the right to work will depend on the capacity in which you act i.e. as the employer, an employment agency or an employment business. However, where you are required to carry out the right to work checks, you must do so on every work-seeker to comply both with immigration and equality law. You must not use appearance, race, ethnicity or accent to determine whether to check someone’s right to work. If you only check right to work based on appearance, race, ethnicity or accent you could face a claim of race discrimination. For more information, please see The REC legal guide on race discrimination.
Do I have to check everyone’s right to work in the UK?
Your obligation to check the right to work will depend on the capacity in which you act i.e. as the employer, an employment agency or an employment business. However, where you are required to carry out the right to work checks, you must do so on every work-seeker to comply both with immigration and equality law. You must not use appearance, race, ethnicity or accent to determine whether to check someone’s right to work. If you only check right to work based on appearance, race, ethnicity or accent you could face a claim of race discrimination.
How can we establish and maintain our statutory excuse?
By carrying out the authorised right to work checks and complying with the Code of Practice on preventing illegal working you can establish and maintain a statutory excuse against employing an illegal worker even if it turns out that they are in fact illegally working in the UK.
The checks as they stand now for EU/EEA/Swiss nationals will be applicable until 30 June 2021.
The need to establish and maintain a statutory excuse only applies to employment that began on or after 29 February 2008. The date on which a person’s employment started on or after 29 February 2008 will determine what right to work checks apply to establish a statutory excuse.
Can I decline to employ or provide work-finding services to a work-seeker who requires a visa to work in the UK?
When checking whether a work-seeker is eligible to work in the UK you should ensure that all applicants are treated in the same way during each stage of the recruitment process. Where a work-seeker has provided you with proof of eligibility to work in the UK with a visa, the individual should still be put forward for any prospective positions if they have the necessary skills, training and experience to do the role.For example, rejecting an applicant from outside the UK, because they require a work permit to lawfully work in the UK, could amount to indirect race discrimination on the grounds of nationality. Please review Home Office’s guidance for employers on how to avoid discrimination when carrying out right to work checks
How often do I need to do Right to Work checks for an agency worker?
The Right to Work (RTW) check must be carried out in all cases before the employment or engagement of the worker begins. The documents you may accept from a person to demonstrate their RTW is set out in two lists, List A and List B.
List A contains the range of documents you may accept for a person who has a permanent RTW in the U.K. The Employment business will not be required to carry out repeat checks where the worker produces a List A document or an online RTW check which confirms that the worker can do the work in question and there is no time limit on their status.
List B are documents show a limited RTW in the UK, which may be lost at some point in the future. The timing of the repeat check will be determined by which part the relevant document falls under so you need to check each document carefully to see when it will expire and a repeat RTW check must be done before the expiry date.
UK and EEA passports are List A documents until 30th June. The Home Office’s Employers Right to Work Check Guidance sets out the new immigration regime and confirms that EEA passports, national identity cards and specified EEA Regulations documents, will be removed from List A documents. From 1st July 2021 an EEA passport or ID cards alone will not be sufficient proof as Right to Work.
Agency workers are typically engaged on a contract for services and the employment businesses as the deemed employer under the Immigration Nationality and Asylum Act 2006 must carry out the right to work checks before the worker is engaged. If a worker’s contract terminates, when the worker re-registers with the employment business, a RTW is required.
Some of the triggers for repeating RTW checks are:
- a List B document was produced or
- you are relying on a Positive Verification Notice by the Home Office Employer Checking Service and the timing of the repeat check will be determined by which part the relevant document falls under. or
- an online RTW confirms that the worker has a time-limited period to work or
- the worker re-registers with your employment business for work finding services or
- there are, long gaps between assignments or
- conditions to the RTW.
For more details on Right to Work checks please see the Home Office’s guidance.
Home Office have confirmed that they recommend organisations consider their specific activities and determine whether follow up checks are appropriate to ensure that workers continue to have the right to work, in circumstances where the individual enters a new job, changes their role or starts a new assignment after 30 June.
Can I use an expired passport/travel document to check a person’s eligibility to work?
You cannot accept an expired passport or travel document unless it is a UK or Irish passport. Expired passports issued by any other country are not acceptable. If you must rely solely on an expired passport or travel document to confirm that a person has the right to remain and work in the UK, you must ensure that you compare the person’s current appearance with the photograph in the passport to ensure they are consistent. In addition, you should also refer to the date of birth in the passport/travel document to satisfy yourself that it is consistent with the person’s current appearance.
Does a national insurance number prove that someone has the right to work in the UK?
No. A National Insurance (NI) number on its own in any format does not provide acceptable evidence of the right to work in the UK. A properly documented NI number will only provide the statutory excuse when given together with one of the acceptable documents from List A or B. Similarly, a UTR (Unique Tax Reference number) issued under the Construction Industry Scheme does not prove the right to work in the UK. From October 2011, HMRC stopped issuing NI number cards and individuals now receive a letter issued by the Department for Work and Pensions. There will still be NI number cards in circulation for those individuals who received cards prior to October 2011.
What are the right to work rules regarding students, asylum seekers, refugees and volunteers?
Students from outside the EEA are allowed to take limited employment in the UK, providing their conditions of entry to the UK allow this. The limits on a student’s working hours depend on:
- what type of visa they have;
- how old they are;
- when they applied for permission to come or stay in the UK;
- the type of course they study; and
- the type of educational provider they are studying with.
Under the new UK points-based system, there will be a single immigration policy applied to all Non-EEA and EEA nationals. For those aged 16 or over, may be eligible to apply for a Student visa to study in the UK at a registered sponsoring institution. To apply for the Student visa, they will need to score 70 points which are non-tradeable. Therefore, all necessary requirements will need to be met. Please see further Home Office guidance on students
(b) Asylum seekers:
Asylum seekers are individuals who have made an application for international protection under the Refugee Convention or the European Convention of Human Rights. They do not normally have the right to work in the UK but may be legally employed if the Home Office has lifted restrictions on them taking work. If an asylum seeker is allowed to work, they will hold a Home Office issued Application Registration Card (ARC) which will state whether or not the asylum seeker is permitted to work. In addition to checking and taking a copy of the ARC, you must also have confirmation from the Employer Checking Service that you can employ or engage an asylum seeker. Please see Further Home Office guidance on asylum seekers
A refugee is an asylum seeker whose asylum claim has been successful. Refugees and individuals with humanitarian protection have no restrictions on the type of work they can do for as long as they hold refugee status. They do not have to qualify under the points-based system and you do not have to sponsor them to employ them.
Asylum seekers may volunteer to carry out work on behalf of a registered charity, voluntary organisation or a public sector organisation. They cannot volunteer once their asylum application has been refused and the appeals process exhausted.
Can an Employment Business sponsor workers and supply them to clients?
The current position is that employment businesses cannot sponsor workers on behalf of clients. This is confirmed in the government guidance for Workers and Temporary workers: guidance for sponsors which states:
“You cannot sponsor a worker if you will not have full responsibility for all the duties, functions and outcomes or outputs of the job they will be doing, or if:
- the job amounts to the hiring out of the worker to another organisation (third party) who is not the sponsor to fill a position with them, whether temporary or permanent, regardless of any genuine contract between you and the third party
- the worker will be contracted to undertake an ongoing routine role or to provide an ongoing routine service for a third party who is not the sponsor, regardless of the nature or length of any arrangement between you and the third party
What is the English language requirement for public sector workers?
From 21 November 2016, under Part 7 of the Immigration Act 2016, all public authority employers have a statutory duty to ensure that all employees fulfilling a public-facing role speak the required standard of English needed for that particular role. There is no established test for fluency, rather employers will have to assess the nature of spoken English needed and will have to ensure that it meets the standard of the role they will undertaking. The government has a Code of Practice on the English language requirements for public sector workers
It is important to note that, as outlined in the Conduct Regulations, a prerequisite to supplying an agency worker is that they must have the relevant training, experience and suitability for the role they are to undertake and so English language requirement places no extra burden on the supply of agency workers in this regard.
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