How to do right to work checks

    right to work checks

    IN THIS ARTICLE

    The UK Right to Work regime is source of compliance risk for employers, with various ways to conduct a check, and with the rules subject to frequent change. But failing to follow the rules and to legal obligations can result in unwanted enforcement action.

    In this guide, we explain the rules you need to follow to comply with the Right to Work

    UK Right to Work rules

    All UK employers have a responsibility to prevent illegal working by checking all of their workers have permission to work.

    This is done by conducting right to work checks before new recruits start their job, to ensure they aren’t disqualified from working in the UK, or from undertaking the work in question, because of their immigration status.

    Following the end of EU free movement, most migrant workers must now have valid immigration status to work legally in the UK.

    For EEA and Swiss nationals, this may be permission under the EU Settlement Scheme (EUSS), whilst for non-EEA or Swiss nationals, and those without settled or pre-settled status under the EUSS, this is likely to be in the form of a work visa.

    Right to work checks should not only be carried out on all prospective employees, but also existing employees that have time-limited permission to work in the UK. For example, those with permission under the Skilled Worker route, unless they’ve applied to settle in the UK, will have limited leave to remain. You must therefore conduct a follow-up check shortly before their grant of leave is due to expire. Once their permission has expired, unless that individual has applied for an extension of their work visa, it will be illegal to continue to employ them.

    If you fail to carry out right to work checks, or don’t carry them out in the correct way, and you’re found to be employing workers illegally, you may have to pay a civil penalty fine of up to £20,000 per worker.

    More seriously, if you know or have reasonable cause to believe that an individual doesn’t have permission to work in the UK, or to do the work on offer, and you employ them anyway, you may be criminally prosecuted. This includes where you’ve conducted a right to work check and, as a result of that check, you’re aware or suspect that an individual doesn’t have permission to work in the UK, or any prior permission has expired. Employing illegal migrants is punishable by up to 5 years in prison, an unlimited fine, or both.

    The Home Office provides guidance for employers which specifies how to conduct right to work checks correctly. By complying with these rules, employers can rely on a ‘statutory excuse’ to defend against penalties and allegations of illegal working. If you’re found to be employing someone who isn’t permitted to do the job on offer, but you’ve conducted a right to work check as required under the rules, you may be able to challenge the penalty.

    Avoiding discrimination in Right to Work checks

    Right to work checks should form an integral part of an organisation’s pre-employment checks.

    Importantly, right to work checks have to be conducted on all workers, regardless of nationality or immigration status. This means checks have to be performed on British citizens as well as EU and non-EEA nationals. If checks are not conducted consistently on all workers, it would be considered unlawful discrimination.

    All employees responsible for recruitment and onboarding within an organisation should be equipped and trained on the latest right to work requirements to ensure consistency of the process across all parts of the organisation.

    In particular, record keeping requirements must be clear and well communicated, and records should be checked regularly through audits and spot-checks to ensure compliance and that standards are being met. Importantly, employers have to retain records of right to work checks and documentation for up to two years after an employee leaves the organisation.

    How to do right to work checks

    There are three ways of conducting right to work checks in the UK. You can either do an online check using the Right to Work Checking Service, or carry out a manual document-based check, or use the Employer Checking Service (ECS). The methods available to you will depend on the circumstances.

    Online right to work checks

    The quickest and simplest way to check the eligibility of either prospective or existing employees to work in the UK is to do so online. However, online checks are currently only available to migrant workers holding certain status, including those with status under the EUSS, a biometric residence card or permit, a frontier worker permit or eVisa.

    Online right to work checks are conducted using the Home Office Right to Work Checking Service. This involves the individual providing you with a share code to enable you to access and view their right to work record on the Home Office system.

    Having been given permission by the worker to access their Home Office record, and provided with a valid share code, you’ll need to input this code online, together with their date of birth. You’ll then need to check that the online photograph matches the individual in question.

    Provided the individual has the right to work in the UK, and undertake the work in question, you can go on to employ them or continue to employ them. However, you’ll need to securely retain either an electronic or hard copy of the response provided by the online service for as long as that person is in your employment, plus an additional two years.

    Digital right to work checks

    Employers are now able to use the services of Identity Service Providers (IDSPs) to digitally verify certain workers’ identities using Identity Document Validation Technology (IDVT).

    IDSPs provide digital identification verification, which is the process of acquiring evidence of an employee’s identity in the form of an image rather than a physical document, and verifying that it is legitimate and belongs to the person who gave it.

    IDSPs can only be used to carry out digital identity checks on behalf of individuals who hold a valid British or Irish passport, or Irish passport card.

    However, guidance issued by the Home Office in February 2023 highlights the limitations of digital right to work checks in allowing the employer a statutory exec against a civil penalty for illegal working: “… other than where you use an IDSP expressly for right to work checks of British or Irish citizens with a valid passport (or Irish passport card), it is not possible to establish a statutory excuse against liability for a civil penalty if the manual document-based check, or online service right to work check, is performed by an IDSP.”

    Put simply, if the IDSP has used manual right to work checks as part of their digital offering, the check cannot be relied on by the employer to challenge a civil penalty.

    Manual right to work checks

    Manual right to work checks are where the employer takes possession of the acceptable documents and verifies these against the person presenting themselves for work. The Home Office guidance spevirices that complaint manual checks require the employer to:

    1. Obtain acceptable documents
    2. Check the documents are valid and belong to the worker
    3. Retain copies of the documents for your records for up to two years after the worker’s employment ends.

    When conducting a manual right to work check, you’ll need to request certain documents from either List A or B of acceptable documents, which we discuss below. These must be in the original format, and must be checked over with the individual present.

    Provided that person is the rightful holder of the document(s), the dates for their right to work in the UK haven’t expired, they’re permitted to do the type of work that you’re offering and the document(s) appear genuine, you can go on to employ them or continue to employ them.

    You will need to make and retain copies in a format that cannot be manually altered. You must also record the date of the check, and securely store this evidence for at least 2 years after that person has stopped working for you.

    Employer Checking Service

    It may not be possible in some cases to conduct either an online or manual right to work check, for example, where the worker has an outstanding Home Office application made prior to their previous leave expiring, or an outstanding appeal against a Home Office decision. If you’re reasonably satisfied that this is the case, you can instead request a Positive Verification Notice from what’s known as the Employer Checking Service (ECS).

    To request this type of check, you’ll need to provide details of your business, the individual’s personal details and job title, and their Home Office reference number or case ID. If the person is permitted to work in the UK, you should receive a notice from the Home Office confirming this, which you’ll need to retain for your records, as with any other right to work check.

    For prospective employees, you should delay their start date until you’re in receipt of confirmation from the Home Office of their right to work. For existing employees applying to extend their permission, they should usually be able to carry on working pending any decision on their application, provided that application was submitted prior to expiry of their leave. In these circumstances, your statutory excuse against any civil penalty will continue for 28 days from the expiry of your employee’s permission to enable you to obtain positive verification.

    Acceptable right to work documents

    There are various documents that can be accepted as proof of eligibility to work in the UK from two separate lists: List A and List B.

    List A contains the range of documents that you can accept for someone who has a permanent right to work in the UK. These include, for example, a British passport. If you conduct the right to work check correctly before an individual’s employment begins, provided you’ve been given a genuine and valid document from List A, you’ll establish a continuous statutory excuse. This means you’ll not have to conduct any follow-up checks on this person.

    List B is broken down into two groups. List B Group 1 specifies the acceptable documents when the employer will be able to rely on a time-limited statutory excuse that lasts until the expiry date of leave. List B Group 2 is where the statutory excuse is available to the employer for 6 months only. This means if you conduct the right to work check correctly having been given a List B document, you’ll establish a time-limited statutory excuse against any civil liability and you’ll be required to conduct a follow-up check to retain that excuse.

    Right to work advice for employers

    The following best practice advice can help mitigate compliance risk and avoid illegal working penalties:

    Audits & spot-checks

    Mock immigration audits are effective in identifying areas of risk and non-compliance, and allow the employer to resolve issues. It’s also helpful for management to regularly conduct informal document spot-checks across its network.

    HR policies

    You should have specific HR policies relating to sponsored worker recruitment, management and record-keeping. Policies should provide guidelines, standards and processes to ensure your operations are consistent and compliant.

    Onboarding & pre-employment checks

    As part of your pre-employment checks, you are expected to take reasonable steps to ensure the identity documents submitted are genuine and that the person presenting for work is the same person the documentation relates to.

    Training personnel

    All personnel involved with recruitment, onboarding and line management of sponsored workers should be trained and skilled in meeting immigration duties. Evidence of an ongoing commitment to best practice is a strong indicator to the Home Office of compliant operations.

    Keep informed

    The Right to Work regime is subject to significant change and the Home Office expects all sponsor licence holders to be up-to-date on the duties placed on them.

    Subscribe to updates on changes to the rules to ensure you stay informed and can react accordingly by adapting policies and processes and communicating these changes internally.

    Record everything

    The Home Office is looking for evidence of a sustained approach and consistent standards when managing sponsor licence documentation. Also ensure your record-keeping extends to the full degree of the requirements.

    Right to Work checks FAQs

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    Legal disclaimer

    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.

    Author

    Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.

    Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.

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