Employers are under a legal duty to prevent illegal working, and it is unlawful to employ someone who does not have permission to work in the UK.
Employers can avoid allegations of illegal working by conducting prescribed Right to Work checks to verify an individual’s eligibility to be employed. Most Right to Work checks are conducted online or manually, but in some cases, the employer may need to use the Home Office Employer Checking Service.
In this guide for employers, we explain what the Employer Checking Service is, when it is used and how to use it to avoid allegations of illegal employment.
What is the Employer Checking Service?
The Home Office’s Employer Checking Service (ECS) is the prescribed method for employers to verify the right to work of individuals who are not able to prove their permission to work through either an online check or manual document check.
Typically, this is because the individual is awaiting an outstanding application or appeal with the Home Office, or because they arrived in the UK prior to 1989 and do not have any form of official confirmation of their immigration status.
In such circumstances where an individual is unable to provide the relevant information or documentation to the employer for them to conduct a right to work check, the employer should use the Employer Checking Service.
There is no cost to use the Employer Checking Service.
When should an employer use the Employer Checking Service?
The Employer Checking Service is used where the individual is a non-British and non-Irish citizen with time-limited permission to work in the UK and is unable to provide a share code or any of the acceptable documents to confirm their eligibility to work.
Examples of circumstances when the checking service should be used include:
- Individuals with a pending Home Office application or appeal
- Individuals with long-term UK residency who arrived in the UK before 1989 but have no formal immigration documentation
- Individuals with a Certificate of Application, either digital or no-digital, which states that the Home Office must be contacted for right to work verification
- Individuals with an Application Registration Card (ARC)
You don’t need to request a Right to Work through the Employer Checking Service if the employee, or potential employee, is from the UK, the EEA, Switzerland, or has immigration documents from the Home Office that demonstrate a Right to Work. However, you will still need to perform a digital or manual check to ensure the employee’s documents are valid. You will also have to keep copies of those documents for up to two years after the employee stops working for you.
If the individual is awaiting a Home Office decision
If a current employee has submitted a visa application in the UK before their current visa expires, their visa conditions remain while the new application is being processed. While the application is being processed, the employer must obtain a Right to Work check or a positive result from the ECS before the 28th day after the old visa expires.
If the individual has an ARC or CoA
When you request a check where the individual has a Certificate of Application that is less than six months old, or an Application Registration Card, you must ask the employee for the original version of the document.
How to use the Employer Checking Service
To use the Employer Checking Service, the employer will need to fill out the online form on the Home Office website.
You will need the permission of the individual and the following information from them:
- Their name
- Date of birth
- Job title and number of hours worked
- Home Office reference
You will be asked a series of questions:
- Does the employee or prospective employee have a passport from the UK, the European Economic Area (EEA) or Switzerland, or other immigration documents from the Home Office that demonstrate a right to work?
- Does this person already work for you? And if so, when did they start working for you?
- Does this person have an ongoing application or appeal for leave to remain in the UK?
- Does this person have an application for no time limit to be added to a new passport by someone who already has indefinite leave to enter or remain in the UK?
- Does this person have an application for transferring a current visa into a new passport / Biometric Residence Permit (BRP) or applying for a replacement BRP?
- Does this person have a Certificate of Application (COA) issued following submission of an application under the EU Settlement Scheme (EUSS)?
- Does this person have an Application Registration Card (ARC) for an asylum seeker stating that the holder is allowed to work?
- Or is the person unable to produce valid BRP due to non-delivery or collection?
- Or are they unable to use Digital Right to Work service due to technical error?
- Is there evidence to demonstrate the individual has settled or pre-settled status under the EU Settlement Scheme (EUSS) issued in a Crown Dependency, or is a Frontier Worker in the UK? Or do none of the above apply?
- Has this person made an application for, or do they qualify for, settlement protection?
- Has this person been in the UK since before 1988?
- Where the employee or prospective employee is a family member of an EEA national and has a COA less than six months old stating they are allowed to work, or where they are an asylum seeker and hold an ARC stating they are allowed to work, have you seen the original of this document?
- Where the employee or prospective employee holds none of the documents above, has this person made an application for, or do they qualify for, settlement protection? A person can apply to settle in the UK, known as indefinite leave to remain if they have got a residence card as a refugee or a person with humanitarian protection.
Based on your answers, you will be told whether or not to ask the Home Office for a Right to Work check. You’ll then the asked to provide the details of the individual as well as the details of your business.
When prompted to provide your business details, you will need to give your business name, the type of business, and your contact details. Your business contact details should include:
- A named employee
- Their job title
- A business address
- Phone number
- Email address
You will provide this information in the online form and receive an email confirmation. You should always double-check the information you have provided and let the Home Office know the correct details.
Once you have submitted the request, the Home Office typically responds within 5 working days. However, it may take longer, so allow up to 10 days.
If the individual’s right to work is confirmed
If the Home Office confirms that the individual has the Right to Work, you will receive a Positive Verification Notice (PVN) which is valid for 6 months.
You must keep a copy of the response you get from the Home Office as proof of the check and that you have complied with your prevention of illegal working duties. You can keep a digital or a hard copy for up to two years after the employee stops working for you.
If the individual’s right to work is not confirmed
If the response from the Home Office shows that the individual does not have the Right to Work in the UK or is entitled to carry out the type of work applied for, you cannot employ or continue to employ them. You will not be able to rely on the statutory defence against a civil penalty.
Importantly, when an employer knowingly employs an individual that does not have the Right to Work, they could face criminal prosecution punishable by imprisonment for up to 5 years and an unlimited fine.
What is the difference between digital Right to Work checks and the Employer Checking Service?
Both digital Right to Work checks and the Employer Checking Service use online systems to verify that an individual has permission to work in the UK, however, they are different and are used in different circumstances.
Digital right to work checks can be carried out on foreign nationals, including those with a BRP/BRC, status under the EUSS, a British National Overseas visa, or a Frontier Workers Permit (FWP). The individual requests a share code via the Home Office website, which they then submit to their employer to conduct their own digital check.
If the individual cannot provide a share code, and cannot prove the physical documentation for a manual check, the employer would need to use the Employer Checking Service.
As such, the type of check you need to perform depends on factors including the documentation the individual holds and their specific circumstances.
Why do I need to do right to work checks?
Employers are required to perform checks to meet their legal duty and ensure they do not employ illegal workers. If an employer is found to have employed someone who does not have the legal Right to Work in the UK, they could face substantial civil penalty fines per illegal worker.
However, if one of your employees has been found to be working illegally, but you can prove you carried out the right to Work checks correctly, you may be able to rely on a statutory excuse to reduce or challenge the fine.
You also need to keep records to show that you have performed the necessary checks.
When do I need to do a right to work check?
To avoid allegations of illegal employment, you should ensure you have verified an individual’s right work prior to their first date of employment.
For workers with time-limited permission to work, you may need to conduct a follow up check to verify their continued permission.
Suppose you are performing a repeat check for a current employee who has an application or appeals outstanding when their previous visa is due to expire. In that case, you must use the ECS 21 days after the expiry date to verify the individual’s Right to Work before the 28 days after the expiry deadline.
Employer Checking Service FAQs
What is the Employer Checking Service?
The employer checking service is an online system provided by the Home Office to verify that a potential or current employee has the Right to Work in the UK when they cannot provide a share code or acceptable documents.
How long does the Employer Checking Service take?
Once you have completed the online form, you should receive a response from the Home Office within 5 working days. However, like many applications, this may be subject to delay, so make sure that you give enough time to verify an employee's status before they start working for you.
How do you check someone's EU settled status?
EU settled status holders should provide the employer with a share code to prove their right to work through an online check.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.