Checking employees’ Right to Work is a legal requirement for all UK employers to ensure that individuals they hire are authorised to work in the country. The process involves verifying the individual’s identity and their immigration status. Employers can conduct these checks digitally or manually, depending on the individual’s status and circumstances.
Failure to check an employee’s right to work or conducting inadequate checks can result in severe consequences, including civil penalty fines, reputational damage and potential criminal liability.
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 rules are however clear: for employees with time-limited work permission, follow-up checks must be performed before their authorisation expires.
It is also important for employers to follow fair and non-discriminatory practices during the checking process. Treating candidates differently based on nationality or other protected characteristics could lead to claims of discrimination. Records of all Right to Work checks must be retained securely in line with data protection regulations.
In this guide for employers, we set out the rules on carrying out checks on existing employees who have 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. You can read our detailed guide to Right to Work checks for new employees and job candidates here.
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, further checks may still be needed.
For employees with a time-limited right to work, follow-up checks are required to ensure their continued eligibility to work after their existing permission expires. 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 fine per breach. 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 employees with indefinite 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), and those with indefinite leave to remain in the UK – do not require any follow up checks to be carried out. After the initial check, provided it has been performed in the correct manner, can be relied on as a continuous defence against allegations of illegal working.
It is only in circumstances where an initial right to work check reveals that an employee is in the UK with limited leave to remain and temporary permission to work, that the employer will need to conduct a further check. This check must be performed 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. Those with limited leave under a specific visa category will require a follow-up check in advance of their leave expiring.
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. Employers must ensure that these checks are conducted in line with Home Office guidance to maintain a statutory excuse and avoid penalties.
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 currently have the right to work in the UK.
If the employee has secured a continuous right to work, such as ILR or settled status under the EUSS, no further follow-up checks are required. The employer’s statutory excuse remains valid for the duration of their employment.
Employees with time-limited permission (e.g., limited leave to remain or a work visa) require further follow-up checks before their new permission expires. Employers must remain vigilant and ensure checks are conducted at the appropriate intervals to maintain their statutory excuse.
It is also 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. In a 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 may face enforcement action 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.
Need assistance?
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 Employee’s Right to Work FAQs
What is a follow-up right to work check?
A follow-up right to work check is conducted for employees with time-limited permission to work in the UK. It ensures they have renewed or extended their permission before the previous authorisation expires.
Do I need to conduct follow-up checks for all employees?
Follow-up checks are only required for employees with time-limited permission to work. Employees with indefinite leave to remain or settled status do not need additional checks after the initial verification.
How do I know when a follow-up check is needed?
For employees with digital immigration status, the Home Office online right-to-work service will indicate when a follow-up check is required. For manual checks, employers must track document expiry dates.
What if an employee has applied for an extension but is awaiting a decision?
If an employee has submitted an in-time application, they retain the right to work while the Home Office processes their case. Employers should verify this through the Employer Checking Service (ECS) and obtain a Positive Verification Notice (PVN), which provides a statutory excuse for six months.
What happens if an employee passes a follow-up check?
If the employee demonstrates a continuous right to work, no further checks are needed. If their permission is temporary, additional follow-up checks will be required before the new expiry date.
Can I face penalties for failing to conduct follow-up checks?
Failing to conduct necessary follow-up checks can result in civil penalties of up to £20,000 per breach and potential criminal liability.
How do I access the Employer Checking Service?
The Employer Checking Service is available on the GOV.UK website. Employers can use it to verify the status of employees with pending Home Office decisions or those who cannot provide proof of their right to work.
Glossary
| Term | Definition |
|---|---|
| Right to Work Check | A process employers must follow to verify that an individual is legally permitted to work in the UK. |
| Follow-Up Check | A secondary check required for employees with time-limited permission to work, ensuring continued eligibility. |
| Statutory Excuse | Legal protection for employers against civil penalties, established by correctly conducting right-to-work checks. |
| Time-Limited Permission | A right to work in the UK for a fixed period, requiring renewal or extension to remain valid. |
| Indefinite Leave to Remain (ILR) | A status granting permanent permission to live and work in the UK without time restrictions. |
| Settled Status | A status under the EU Settlement Scheme allowing EEA/Swiss nationals and their family members to work indefinitely in the UK. |
| Employer Checking Service (ECS) | A Home Office service used to verify the right to work of employees with pending immigration applications. |
| Positive Verification Notice (PVN) | A notice issued by the ECS confirming an employee’s temporary right to work while their application is processed. |
| EU Settlement Scheme (EUSS) | A scheme allowing EEA/Swiss nationals and their family members to apply for pre-settled or settled status in the UK. |
| Digital Immigration Status | An electronic record of an individual’s immigration status accessed via the Home Office online right-to-work service. |
| Share Code | A unique code generated by employees to allow employers to access their digital right-to-work records. |
| Manual Check | A physical verification of documents to confirm an employee’s right to work in the UK. |
| List A | Documents proving an indefinite right to work in the UK, requiring no further checks. |
| List B | Documents proving a time-limited right to work, requiring follow-up checks before expiry. |
Additional Resources
Right to Work Checks: An Employer’s Guide
https://www.gov.uk/government/publications/right-to-work-checks-employers-guide
Right to Work Checklist
https://www.gov.uk/government/publications/right-to-work-checklist
Avoiding Unlawful Discrimination While Preventing Illegal Working: Code of Practice
https://www.gov.uk/government/publications/right-to-work-checks-code-of-practice-on-avoiding-discrimination
Acas Guidance on Hiring Someone
https://www.acas.org.uk/hiring-someone
Check a Job Applicant’s Right to Work
https://www.gov.uk/check-job-applicant-right-to-work
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
