Most UK employers are aware of the requirement to conduct a right to work check on every new recruit, but follow-up checks on existing staff can often get overlooked or forgotten altogether in the day-to-day running of an organisation.
The following guide on right to work in the UK existing employees examines the rules around follow-up checks for anyone with a time-limited right to work in the UK, from when the requirement to carry out a subsequent check arises to what happens if any ongoing right to work is lost.
When are follow-up right to work checks required?
Under the UK’s illegal working regime, and its strict rules and requirements, all employers must carry out prescribed right to works check on every new recruit, regardless of an individual’s colour, ethnicity or nationality — although an employer’s responsibilities in this regard do not end there. This is because, in respect of any employee with a time-limited right to work in the UK, a second and possibly subsequent checks may still be needed. A follow-up check is designed to prevent migrant workers from overstaying their lawful immigration permission and should occur when any previous permission comes to an end.
In the event that an employer is found to be employing a person who is disqualified from working in the UK by reason of their immigration status, the initial right to work check will enable an employer to establish a statutory excuse against liability for a civil penalty of up to £20,000 per worker. The second check will enable the employer to maintain that excuse, where necessary. This is because the employer will be aware, from the first right to work check, whether an employee has a continuous or time-limited right to work in the UK. If the right is time-limited, the employer must re-check that individual’s immigration status to ensure that they have an ongoing right to work and have since been granted further leave.
Taken together, initial right to work checks on new recruits, and follow-up checks on existing employees, help to ensure that those without lawful immigration status are unable to undertake work in the UK. The ability to work illegally is one of the key drivers of illegal migration, allowing unscrupulous employers to undercut compliant businesses and leaving migrant workers vulnerable to exploitation. As such, there are strict laws in place to help prevent illegal working, penalising employers who fail to meet their legal responsibilities.
Importantly, by carrying out the first check, but failing to conduct any follow-up check, where necessary, will not provide the employer with a defence. If both checks are needed, both must be carried out. In some cases, where a migrant worker stays with an employer for several years, subsequent checks may be needed. Additional checks may also prove necessary where a follow-up check reveals that a decision is pending from the Home Office.
Which existing employees need follow-up checks?
Unlike initial right to work checks, where these must be carried out on all new recruits, the rules relating to follow-up checks on existing employees are less onerous. This is because many employees will have an unrestricted right to work in the UK, including all British and Irish nationals, any EEA or Swiss nationals with settled status under the EU Settlement Scheme (EUSS), as well as non-EEA nationals with indefinite leave to remain in the UK.
It is only in circumstances where an initial right to work check reveals that an employee is in the UK with limited leave to stay that the employer will need to conduct a further check, usually shortly prior to expiry of that employee’s existing immigration permission.
For example, if a worker is in the UK with permission under the Skilled Worker route, their visa may only be valid for a period of 3 years. This means that, shortly prior to expiry of that visa, the employer must carry out a second check to ensure that the employee has successfully applied for an extension of stay. The employer will need to issue the worker with a new Certificate of Sponsorship to cover the extended period, but the responsibility to apply for an extension from the Home Office ultimately lies with the visa-holder.
Do existing EEA and Swiss employees need follow-up checks?
Freedom of movement in the UK ended for EEA and Swiss nationals on 31 December 2020, although a 6-month grace period followed during which time certain aspects of free movement law were retained to allow eligible citizens and family members living in the UK by 31 December 2020 to apply to the EUSS. This grace period ended on 30 June 2021.
Since 1 July 2021, EEA and Swiss citizens, together with any relevant family members, are no longer able to rely on their passport or national ID card, which only confirms their nationality, to prove their right to work in the UK. They are instead required to provide evidence of lawful immigration status, in the same way as other overseas nationals. This means that if an EEA/Swiss national or family member has settled status under the EUSS, they will have a continuous right to work in the UK. If, in contrast, they have pre-settled status or limited leave under one of the work routes, a follow-up check will be needed.
However, there is no requirement for employers to conduct retrospective right to work checks on those EEA/Swiss citizens or their family members who commenced employment up to and including 30 June 2021. An employer will maintain a continuous statutory excuse against civil liability if the initial checks were undertaken in accordance with the official guidance that applied at the time when that pre-employment check was conducted.
Importantly, where an employer chooses to carry out retrospective checks, they must ensure that they do so in a non-discriminatory manner. This may mean that checks need to be carried out across the entire workforce. The online Code of Practice for employers: ‘Avoiding unlawful discrimination while preventing illegal working’, provides guidance on avoiding unlawful discrimination when conducting right to work checks. Any worker who believes that they have been discriminated against by their employer, either directly or indirectly, may lodge a complaint before the employment tribunal. Equally, once a worker who has time-limited permission has established their initial entitlement to work in the UK, they should not be treated less favourably during the course of their employment.
How should follow-up right to work checks be conducted?
The way in which follow-up right to work checks should be conducted, and when, will depend on the nature of the immigration status held by the existing employee in question.
In the case of migrant workers with immigration status held in digital format, including EEA/Swiss nationals and family members with pre-settled status under the EUSS whose employment commenced after 1 July 2021, they must provide their employer with a share code using the online right to work service. When the initial right to work check is carried out, the online service will advise when a follow-up check will be needed.
To access the share code, the employee will need to use ‘Prove your right to work to an employer’ section of the service. To access the right to work record, the employer must then input the share code, together with the employee’s date of birth, under the employer section ‘View a job applicant’s right to work details’. If, at this stage, the employee has been granted settled status under the EUSS or indefinite leave to remain, they will now have a continuous right to work in the UK, providing the employer with a statutory excuse for the duration of their employment. In other words, no further follow-up checks will be needed.
For existing employees whose immigration status is not held in digital format, the employer will need to conduct a manual follow-up check when their documents are due to expire. There are two document lists when it comes to manual checks, where List A documents show a permanent right to work in the UK and List B documents show a time-limited right.
If the employee cannot provide the required documentation, for example because they have an application pending with the Home Office, the employer should use the Employer Checking Service for confirmation of the individual’s immigration status.
What happens if an employee passes a follow-up check?
If an employee passes a follow-up right to work check, this means that they have been able to satisfactorily prove that they have an ongoing right to work in the UK. For the employer, if the Home Office then discovers that an overseas national is working illegally, but the check has been conducted correctly, they will not be given a civil penalty for that worker.
However, it does not always follow that once a second right to work check has been correctly conducted for a migrant worker that the employer has established a statutory excuse for the duration of that person’s employment. In many cases, subsequent checks may prove necessary where the employee still has a time-limited right to work in the UK and they continue to work for the same employer. In fact, it is not uncommon for an existing employee to have made an application for an extension of stay, but any decision may still be pending when the employer is prompted to carry out a follow-up check.
Fortunately, in any scenario where an existing employee is waiting for a decision from the Home Office, they will have on ongoing right to work in the UK until any in-time application has been determined, and any administrative review or appeal rights have been exhausted. However, the employee will not be able to prove their ongoing right to work by using a share code or providing valid paper documentation. In these circumstances, the employer will need to verify the right to work by contacting the Employer Checking Service. Provided the employee has an outstanding application made before their previous permission expired, the employer will be sent a Positive Verification Notice (PVN). A PVN will demonstrate a statutory excuse for 6 months from the date of that notice.
To establish if a verification check needs to be requested from the ‘Use the Employer Checking Service’, and to submit a check if an existing employee cannot show their documents or online immigration status, employers can use the online tool at GOV.UK.
What happens if the employee loses their ongoing right to work?
On the date on which an employee’s permission expires, to be able to continue to employ them, the employer must be reasonably satisfied that person has submitted an in-time application to the Home Office to extend or vary their leave. The employer will then have 28 days to obtain a PVN from the Employer Checking Service, during which time they will maintain a statutory excuse during this short grace period. This is in contrast to initial right to work checks, where an employer would need to delay the worker’s start date until receipt of confirmation of their right to work by way of a PVN. During the 6-month PVN period that an employee provides evidence that their application, administrative review or appeal has been determined with permission to stay granted, the employer will maintain a statutory excuse by conducting a right to work check in the normal way.
However, if the employer is sent a Negative Verification Notice from the Employer Checking Service in response to their verification request, they will no longer have a statutory excuse and will be liable to a hefty civil penalty if the person is no longer permitted to legally work in the UK. Importantly, if an employer continues to employ a migrant worker, once they know that the worker no longer has the right to work in the UK, the employer may be convicted of the criminal offence of employing an illegal worker, punishable by an unlimited fine and/or up to 5 years in prison. This is in addition to losing any sponsor licence and the right for legitimate migrant workers to be employed by their business.
The worker themselves will also be guilty of a separate offence of illegal working for which they may be fined and given a custodial sentence.
DavidsonMorris are specialist business immigration legal advisers, working with UK employers to ensure compliance with their duty to prevent illegal working, including in relation to right to work checks on workers with time-limited permission to work in the UK.
If you have a question about any aspect of Right to Work checks and avoiding Home Office penalties, contact us.
Check an Existing Employee’s Right to Work FAQs
Do I need to check existing employees right to work?
An employer must conduct a follow-up check on any existing employee who has a time-limited right to work in the UK, for example, a migrant worker with limited leave to remain under one of the short or long-term worker routes.
Are you currently legally eligible to work in the UK?
Whether or not an overseas national is legally allowed to work in the UK will depend on their immigration status. In most cases, a person’s status can be checked online using the Home Office online right to work checking service.
What proves that I have the right to work in the UK?
You can prove your right to work in the UK by obtaining a share code to give to an employer for them to check your record. A share code can be obtained from the online right to work checking service.
Do employers need to check settled status for existing employees?
Depending on when an EEA or Swiss employee, or family member, started working for the employer, where a right to work check was conducted in accordance with the rules available at the time, a further check may not be needed.
Last updated: 31 December 2022