- 10 minute read
- Last updated: 17th October 2019
It is the responsibility of all employers to check the eligibility to work in the UK of the individuals they employ. While it can be a challenge for employers to keep up to date with their immigration compliance duties under the prevention of illegal working regulations, but failure to comply can result in Home Office enforcement action and even criminal sanctions.
This article covers:
- Who is eligible to work in the UK?
- Employer checking service
- Acceptable Right to Work documents
- No Right to Work
- Allegations of Illegal Working
An individual is eligible to work in the UK if they are a citizen of Britain, an EU or EEA member state or of Switzerland.
The eligibility to work in the UK of nationals from non-EEA countries, however, will vary depending on their immigration and working status and any restrictions imposed by their immigration status.
For example, those holding valid leave under a work visa are only permitted to undertake the type of work allowed under their visa category for the time period granted under the visa. Individuals with indefinite leave to remain however are not subject to UK immigration or work limitations.
In all cases, the prospective employee has to provide documentary proof of their right to work and employers must check the right work documents of all new employees, regardless of their nationality. It may be considered discrimination if eligibility checks are only conducted on employees of certain nationality or race.
Employers can now, in certain circumstances, rely on the Home Office’s free online checking service to meet their duty to conduct right to work checks on employees.
Prior to January 2019, employers had to conduct checks manually by requesting original documents and retaining copies of these, as well as performing online checks where required.
Employers can now use the online checking service as the single method of verifying an employee’s permission to work where the individual has:
- A biometric residence permit or biometric residence card or
- Settled status under the EU Settlement Scheme.
If an online check is not possible, the employer should continue to perform manual document checks.
You should also use the online service to check an employee’s immigration status in any of the following circumstances:
- The employee cannot show you their documents because of an outstanding appeal, review or application with the Home Office
- The employee has a Certificate of Application less than six months old
- The employee has an Application Registration Card
- The employee is a Commonwealth citizen who started living in the UK prior to 1988.
Please note, in the event that you are requesting a check in circumstances where the prospective or existing employee has a Certificate of Application less than six months old, or an Application Registration Card, you will need to see the original version of the document.
In order to meet your duties, you can only accept documents from the relevant Home Office guidance list to verify eligibility to work. There are three lists, which apply depending on the individual’s immigration status.
After the initial pre-employment check, you will not be required to carry out any further Right to Work checks on this person, as your organisation will have a continuous statutory excuse for the full duration of the person’s employment with you.
- A passport showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.
- A passport or national identity card showing the holder, or a person named in the passport as the child of the holder, is a national of a European Economic Area country or Switzerland.
- A Registration Certificate or Document Certifying Permanent Residence issued by the Home Office, to a national of a European Economic Area country or Switzerland.
- A Permanent Residence Card issued by the Home Office, to the family member of a national of a European Economic Area country or Switzerland.
- A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK.
- A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK.
- A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.
- A full birth or adoption certificate issued in the UK which includes the name(s) of at least one of the holder’s parents or adoptive parents, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.
- A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.
- A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.
List B Group 1
Group 1 You have a time-limited statutory excuse which expires when the person’s permission to be in the UK expires. You should carry out a follow-up check when the document evidencing their permission to work expires.
- A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question.
- A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder which indicates that the named person can currently stay in the UK and is allowed to do the work in question. 3. A current Residence Card (including an Accession Residence Card or a Derivative Residence Card) issued by the Home Office to a non-European Economic Area national who is a family member of a national of a European Economic Area country or Switzerland or who has a derivative right of residence.
- A current Immigration Status Document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.
List B Group 2
Group 2 You have a time-limited statutory excuse which expires 6 months from the date specified in your Positive Verification Notice. This means that you should carry out follow up checks before this notice expires.
- A Certificate of Application issued by the Home Office under regulation 17(3) or 18A (2) of the Immigration (European Economic Area) Regulations 2006, to a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old together with a Positive Verification Notice from the Home Office Employer Checking Service.
- An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.
- A Positive Verification Notice issued by the Home Office 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 in question.
Commonly presented documents
Employers will usually be presented with the following documents to prove eligibility to work in the UK. These should be in original form. It will be important to ensure any documents provided correspond with the relevant list.
Passport or national identity card
You should check if the prospective employee is a British Citizen, Citizen of the UK and Colonies, are an EEA or Swiss national or have the right to live in the UK.
Other documents proving their permanent residence or residence of a relative
These could be in the form of a residence permit, certificate or registration, or a UK residence card. It must also show they are an EEA or Swiss national.
The employee may hold other endorsed travel documents that show they are permitted to stay in the UK indefinitely or have the right to reside in the country.
A biometric immigration document is issued by the Border Agency and must indicate the person can stay indefinitely or there is no time limit on the stay.
Similarly, make sure the individual’s Immigration Status Document has been granted by the Home Office, Border and Immigration Agency or UK Border Agency and shows the named person can stay indefinitely, has the right to reside, or no time limit on their stay. You should also ask for their National Insurance number issued by a Government agency or previous employer.
Birth or Adoption certificate
A birth certificate should have one of more parents named and must be issued in the UK or Channel Islands. Ask also for a government document that details their national insurance number and name.
Registration or naturalism certificate
The potential worker should be named as a British Citizen, and you should also ask for a government document that states their National Insurance number and name.
Official UK government letter
The worker may alternatively have been given a letter by the Home Office or immigration authorities that shows they are granted permission to stay indefinitely in the country. This, again, should be accompanied by a document showing their UK national insurance number and name.
If you are checking original documents, you must check them with the worker present. To ensure validity, you should check the documents carefully.
You must ensure the documents are genuine and unchanged and that the dates permitting work in the UK are not expired. You should ensure the photos and dates of birth are the same across all documents. If documents have different names, you should check supporting documents – i.e. marriage or divorce documentation. Also, check if the applicant has permission to do the work you are offering – there may be limits on the number of hours they can work.
When you copy documents, make sure it is a photocopy that cannot be altered at a later date. Ensure it is legible and shows all the relevant information clearly – including expiry dates, names and endorsements. Copy biometric documents on both sides and for all documents record the date it was made and keep them during the employment and for at two years after their employment ceases. While dealing with personal documents ensure you follow data protection procedures.
In cases where the applicant is not a British citizen, from the EEA citizen or Switzerland and they cannot provide documentation showing their eligibility to work in the UK, they will need to apply for a visa or work permit. You must not employ them until this is in place.
The worker will need to apply for the visa through a British Overseas Mission or the British Embassy. In some cases it will not be sufficient just to have a visa and the worker will need to apply for an accompanying work permit. The work permit will give the holder permission to work in a named country.
A worker cannot apply for a work permit. The prospective employer must apply on their behalf. The employer must issue the worker with a Certificate of Sponsorship and lead the application process.
The penalties for employing illegal workers and for failing to properly check eligibility to work in the UK can be severe, including a substantial fine for each worker found to be unlawfully employed by our organisation. If you are found to have employed someone you know did not hold the right to work in the UK or had reasonable cause to believe they didn’t you can be sent to jail for five years and forced to pay an unlimited fine.
You will also be penalised if you did not carry out the necessary checks or did not check them properly before offering employment. In these cases, you are likely to get a referral notice and may be required to pay up to £20,000 for each worker found to be employed illegally. You will have 28 days to respond if you are found liable and can object to the decision.
The consequences of employing illegal workers are severe and costly. Avoiding Home Office scrutiny and penalty warrants the effort and investment in ensuring continued compliance with your immigration and prevention of illegal working duties.
DavidsonMorris’ team of UK immigration lawyers specialise in helping employers meet their right to work duties. We offer an immigration audit service to review existing processes and procedures and identify areas of risk and weakness to be addressed when verifying eligibility to work in the UK. We can support with implementing effective and compliant systems when checking an individual’s eligibility to work in the UK.
We also provide training for HR, managers and those responsible for onboarding new employees to ensure a consistent approach to meeting your duties.
If you are facing allegations that your organisation has breached its duties, we can help with your next steps. If you opt to challenge a civil penalty, we can provide guidance throughout the process.
For specialist right to work expertise, speak to us.