The Employer Checking Service (ECS) is a Home Office tool for employers to use in certain circumstances to verify an individual’s right to work. It is primarily used when an individual is unable to provide proof of their eligibility to work, typically because they have an outstanding visa or settlement application, an appeal or they have been granted a Certificate of Application under the EU Settlement Scheme. In these instances, the employer must request verification from UK Visas and Immigration and will receive a Positive Verification Notice if the person has permission to work.
There are rules and limitations to using the employer checking service, making it important for employers, HR and those responsible for conducting an organisation’s right to work checks to understand how to make use of the service without breaching the prevention of illegal working regulations.
In this practical guide for employers, we explain how to use the employer checking service as part of your immigration compliance procedure.
Conducting right to work checks
UK employers operate under a duty to prevent illegal working by carrying out right to work checks on all prospective employees and repeat checks on those with time-limited permission to work.
Under the UK’s prevention of illegal working regulations, where an employer is found to have employed someone who, by reason of their immigration status, is prohibited from working in the UK or from undertaking the work in question, they may face a civil penalty fine per breach.
However, where an employer is found to have employed someone who is working illegally, yet they can show they carried out the prescribed right to work checks correctly, they may be able to rely on a statutory excuse to challenge or reduce the fine.
It is critical therefore that all personnel performing right to work checks are aware of what they must do to confirm the right to work of both prospective employees and existing employees whose right to work in the UK is time-limited.
It is essential that all personnel responsible for conducting these checks are fully aware of the procedures to confirm the right to work of both prospective and existing employees whose permission to work is time-limited. Employers can conduct right to work checks through several methods:
Online Right to Work Check
If an individual provides a share code, employers can verify their right to work online. This method applies to individuals who have an eVisa or settled or pre-settled status under the EU Settlement Scheme.
Manual Document-Based Check
Employers can examine original documents, such as a British or Irish passport, to confirm an individual’s right to work.
Digital Check
The employer uses an Identity Service Provider (IDSP) with Identity Document Validation Technology (IDVT) to conduct digital identity verification for British and Irish citizens who hold a valid passport (including Irish passport cards). The Home Office recommends that employers only accept checks via an IDSP that satisfy a minimum of a Medium Level of Confidence.
Employer Checking Service
In situations where an individual cannot provide the required documentation or online immigration status, employers should use the Employer Checking Service to verify their right to work.
What is the Employer Checking Service?
The Employer Checking Service (ECS) is one of the ways in which an employer can check if a prospective or existing employee has the lawful right to work in the UK and to do the work on offer. However, there are limited circumstances in which this service can be used.
The Employer Checking Service is a Home Office service available to employers to check the right to work of employees if they cannot show their online immigration status or an acceptable physical document. This could be because, for example, an employee has an outstanding application, appeal or review with the Home Office and is waiting for a decision, or they arrived in the UK prior to 1989 and do not have documentation to be able to prove their immigration status or right to work.
The employer must also use the ECS to check an employee’s status if that person has a either digital or non-digital Certificate of Application (COA) stating that the employer should ask the Home Office to check their right to work, or they have an Application Registration Card (ARC). A COA is the document issued by the Home Office on receipt of an application under the EU Settlement Scheme (EUSS), while an ARC is a card given to individuals by the Home Office to show they have made an asylum claim.
What is a positive verification notice from the Employer Checking Service?
If through the ECS the Home Office confirms that the individual has the right to work, a Positive Verification Notice (PVN) will be issued to the employer. The PVN must be retained by the employer as proof of the working status check.
The PVN will also detail any limitations on the individual’s right to work.
Importantly, a PVN will only provide the employer with a time-limited statutory excuse for a period of 6 months. This means that a follow-up check must be conducted when this period is due to expire if the statutory excuse is to be retained. Equally, if any follow-up check reveals that the employee has been granted a time-limited right to remain in the UK, an additional right to work check will be needed on expiry of that grant of leave.
Once an employee’s permission to work in the UK has expired, unless they have applied in time to the Home Office for further leave, it will be illegal to continue to employ them. An employer may not only be liable to a civil penalty in these circumstances, but they also run the risk of criminal prosecution, given that they should be aware at this stage that any time-limited right has run out. The offence of employing someone that an employer knows or has reasonable cause to believe no longer has permission to work in the UK or do the work on offer is punishable by up to 5 years’ imprisonment and/or an unlimited fine.
When to use the Employer Checking Service
The employer would not need to request a Home Office check if the individual is a British or Irish national, or has an immigration status that can be checked online or using an immigration document from the Home Office demonstrating a right to work. Employers will only need to use the Employer Checking Service if they are not able to check the individual’s eligibility to work online or through manual document checks.
Circumstances in which the employer would need to contact the ECS to establish a statutory excuse include:
- being presented with a non-digital CoA, or an email or letter, confirming receipt of the employee’s application to the EUSS on or before 30 June 2021
- being presented with a non-digital CoA confirming receipt of the employee’s application to the EUSS on or after 1 July 2021
- being presented with a valid ARC stating that the card-holder is permitted to undertake the work in question, although this will be restricted to employment falling within a shortage occupation
- being satisfied that they have not been provided with any acceptable documents and are unable to carry out a check using the online service
- where the employee presents other information indicating that they have an outstanding application with the Home Office for permission to remain in the UK which was made prior to expiry of their previous permission, or has a pending appeal or administrative review, and therefore cannot provide acceptable evidence of their right to work
- where the employer considers that they have not been provided with any acceptable documents, but the employee presents other information indicating they are a long-term resident who arrived in the UK before 1989.
In any one of these scenarios, the employer will establish a statutory excuse only if they are issued with a Positive Verification Notice (PVN) which confirms that the named person is authorised to work and allowed to carry out the type of work in question.
If an employer is requesting verification from the ECS because an employee has an outstanding application, appeal or administrative review against a Home Office decision, they should wait at least 14 calendar days after the employee’s paperwork has been delivered or posted to the Home Office or court before requesting a check. This is because it takes this amount of time for most cases to be registered with the Home Office.
In these circumstances, any existing right to work in the UK will continue pending a decision by the Home Office, or determination of any review or appeal, provided the employee’s pending application was made before their previous grant of leave expired.
How to use the Employer Checking Service
To carry out the ECS check, you must have the individual’s permission. To request a PVN using the Employer Checking Service, the employer should use the ECS online tool at GOV.UK. You will need to either create an ECS account, or log into your account if you already have one. Use the “Start now” link and asked to complete a number of questions to clarify if a check is needed, which nay include the following:
- Does the employee or prospective employee hold a passport from the UK or Ireland, or other immigration documents from the Home Office, or an immigration status that can be shared digitally that demonstrate a right to work?
- Does this person already work for the employer?
- Does this person have any one of the following:
- an ongoing application or an appeal for leave to remain in the UK?
- an application for no time limit to be added to a new passport by someone with indefinite leave to enter or remain in the UK?
- a COA issued following submission of an application under the EUSS?
- an ARC for an asylum seeker stating that the card-holder is allowed to work?
- or unable to use the online right to work service due to technical error?
- evidence to demonstrate that the individual has settled or pre-settled status under the EUSS issued in a Crown Dependancy or is a Frontier Worker in the UK?
- none of the above?
Following the questions, the employer may be asked to provide a reference number relating to the employee’s Home Office records, such as an application reference number, a passport number (current or expired) or any tracking reference number.
Depending on the answers given, the online system will determine whether or not you can request an online check from the Home Office. You will then be prompted to enter the relevant details of the employee, together with their job role and details of your business.
In cases where a right to work check is deemed necessary using the Employer Checking Service, the employer will also be asked to provide the following information:
- the employee’s personal and contact details
- the employee’s job title and hours worked
- the employer’s business name, type and contact details
In addition, you will need to provide your business name, business type and contact information.
You will be asked to enter this information into an online form, although the employee will need to agree to this first, which they can do verbally or in writing. The employee will also need to provide the employer with an accurate reference number to help identify their Home Office records, as well as their personal details, including full name, date of birth, nationality, home address, contact number, place of birth and year of entry to the UK.
When complete, you should receive an email confirmation of everything you have entered.
Once the Home Office has reviewed the information and carried out the necessary checks, you will be notified of the individual’s right to work status.
Using the Employer Checking Services for follow up right to work checks
The ECS can be used to conduct both initial and follow-up right to work checks where you are unable to perform a manual or digital check.
Follow up right to work checks will be needed where an individual has time-limited permission to work in the UK. This could mean, for example, they have a temporary work visa. Employers should conduct follow-up right to work checks within one month of the employee’s right to work expiring. Employers can also choose to conduct follow-up right to work checks more frequently.
To use the ECS to conduct follow-up right to work checks, employers will need to:
- Create an ECS account, or log into your account if you already have one
- Select the “Follow-up checks” tab.
- Enter the employee’s details
- Submit the form
The Home Office will then check the employee’s immigration status and send you a notification with the results of the check.
The process of conducting the follow-up check using the ECS is relatively straight forward. The risk comes in ensuring that you are aware of which individuals have time-limited permission to work and that the follow up checks are carried out at the appropriate time. To reduce legal risk, it is advisable to plan your checks in advance to avoid any delays in conducting the checks and to ensure that you are complying with the legal requirements, and keep accurate records to prove that you have conducted the checks correctly if you are audited by the Home Office.
How long does the Employer Checking service take?
You should receive a response by email within 5 working days of submitting a valid request to the ECS to verify the employee’s right to work and any work restrictions.
In circumstances where an employee has not yet started work, the employer will need to delay their start date until they are in receipt of confirmation of that individual’s right to work by way of a PVN. In contrast, for existing employees applying to extend their leave to remain in the UK, they should be able to continue working for their employer pending any decision on their application, provided that application was submitted prior to expiry of their previous leave. The employer will be given a 28-day grace period from expiry of the employee’s permission, during which time the statutory excuse against civil liability can still be established, providing the employer with enough time to obtain a PVN.
On receipt of a PVN, as with other types of right to work checks, the employer must retain a copy of this as part of the prescribed right to work process. They may also need to retain a copy of the evidence provided by the employee, such as any COA.
If the employee has the right to work
If the individual is confirmed to have the right to work, you will be sent a Positive Verification Notice confirming eligibility to work and advising of any restrictions on their permission to work. Under the right to work record-keeping duties, you should retain the PVN and store this document (either in print or online) for up to two years after the individual leaves your employment. The PVN also serves as evidence that you have conducted the correct right to work check in defence of any allegation of breaching the illegal working regulations.
If the employee does not have the right to work
A negative verification notice (NVN) is a letter issued by the Employer Checking Service (ECS) to an employer that informs them that an employee does not have the right to work in the UK. NVNs are typically issued as a result of an ECS check that has been conducted by the employer. There are a number of reasons why an employee may receive an NVN. Some of the most common reasons include:
- The employee’s visa has expired.
- The employee’s biometric residence permit (BRP) has expired.
- The employee’s status under the EU Settlement Scheme has expired.
- The employee’s right to work in the UK has been revoked.
If the ECS establishes that the individual is not eligible to work in the UK, a Negative Verification Notice will be issued to the employer. In such circumstances, you will not be able to rely on the statutory defence against a civil penalty if you employ, or continue to employ, that individual. If an employer knows or has reasonable cause to believe the individual does not have the right to work and employs them anyway, you risk criminal prosecution punishable by imprisonment for up to 5 years and/or an unlimited fine.
There are employment law issues to be considered before taking action in response to a negative right to work check. As such, it is advisable to seek professional guidance to avoid allegations of unlawful discrimination when rejecting a job applicant or moving to dismiss an existing worker who you discover does not have the right to work.
What is a Certificate of Application and how are they used with the ECS?
A Certificate of Application (COA) is the document issued by the Home Office on receipt of an application under the EU Settlement Scheme (EUSS).
Guidance issued in October 2023 removed the requirement on employers to verify digital Certificates of Application with the ECS for individuals with pending EU Settlement Scheme applications made on or after 1 July 2021.
In circumstances where an employee is currently awaiting a decision on an EUSS application, they should provide their employer with their non-digital COA to enable the employer to request a right to work check through the ECS, if necessary. The employer cannot simply rely on the employee’s verbal or written confirmation that they have applied to the EUSS. The employer must have physically seen the original, non-digital COA to be able to request a right to work check using the Employer Checking Service.
Retaining right to work records
Employers in the UK are required to retain records of ECS checks for at least two years after the employee leaves their employment. This requirement is set out in the Right to Work record keeping guidance from the Home Office.
The records must show that the employer has:
- Completed an ECS check for the employee
- Received a positive verification notice (PVN) from the Home Office
- Retained a copy of the PVN
Employers can keep ECS records in any format, but they must be secure and accessible. Employers should also have a system in place for reviewing and updating ECS records regularly.
Failure to comply with the requirement to retain ECS records can lead to a civil penalty per breach.
To comply with the requirement to retain ECS records, it is advisable to:
- Create a system for storing ECS records securely. This could be a physical filing system or an electronic system.
- Make sure that ECS records are accessible to authorised personnel only.
- Review and update ECS records regularly to ensure that they are accurate and up-to-date.
- Retain ECS records for two years after the employee has left the organisation.
Employees with expiring leave
If an individual has submitted a visa application in-time – ie before it expires – they retain lawful status while the decision is pending and the conditions of their visa remain in place. During this time, however, the employer has to carry out a right to work check or be issued a Positive Verification Notice before the 28th day after the visa expires to ensure compliance.
How do online right to work checks and the ECS differ?
An online right to work check is a check that an employer can carry out quickly and independently, without the need to submit a request to the ECS. However, to conduct an online check, the employer will need to ask the employee to generate a 9-character share code to enable them to access and view that individual’s immigration status online.
In addition to those who have valid immigration status held in digital format, this online service also now supports a range of overseas nationals who have pending applications for permission to stay in the UK. For example, if an employee advises their employer that they they have an outstanding but in-time application, and they are an eVisa holder, the employer should ask them to provide a share code. Once in receipt of the share code, the employer can use the online service to carry out the right to work check. An employee may also be able to generate a share code where they are in receipt of a COA, although the online right to work service may direct the employer to verify this via the ECS.
Where applicable in the context of pending applications, the online service will confirm the employee’s right to work and will provide the employer with a statutory excuse for a period of 6 months. However, where an employee has an outstanding application but is unable to provide a share code, or the online service redirects the employer, a request must be made to the ECS for verification in order for the employer to have a statutory excuse.
Allegations of non-compliance
If you are facing allegations from the Home Office that your organisation has breached its duties under the prevention of illegal working regulations, you will need to take action quickly. Your next steps will depend on the circumstances and the merit of the allegations. For example, if you have clear and contemporaneous records of compliant right to work checks, you should be able to challenge the fine to have it revoked.
In all cases, you should be cooperative and responsive with the Home Office. Taking professional advice is also recommended to ensure you proceed with the most appropriate option in the circumstances. This could include:
1. Pay the penalty
The first option is to simply pay the penalty. This is the simplest and quickest option, but it is also the most expensive given the level of fines that can be issued. If you decide to pay the penalty, make sure to pay it on time to avoid additional late payment fees.
2. Object to the penalty
Employers can also object to the penalty, but will need grounds to do so. This should be done within 28 days of receiving the penalty notice. Objections must be made in writing and must state the reasons for the objection.
The Home Office will then consider the objection and decide whether to uphold the penalty, reduce the penalty, or cancel the penalty altogether. If the Home Office upholds the penalty, the employers will have to pay it. The Home Office also has authority to increase the level of fine if the penalty is upheld following an objection.
3. Appeal the penalty
If the Home Office upholds the penalty, the employer may be able to appeal the decision to the County Court. Appeals must be made within 28 days of receiving the Home Office’s decision.
The County Court will then hold a hearing to consider the appeal. If the County Court finds that the Home Office’s decision was wrong, it may cancel the penalty or reduce the penalty.
Taking legal advice would be critical to determine the merit of pursuing an appeal, and if you do opt to proceed, ensure that your case is put forward effectively.
4. Make changes to prevent illegal working
In addition to paying or challenging the penalty, employers should also take steps to prevent further breaches and allegations of illegal working in the future. This may include:
- Conducting an immigration audit to identify areas of risk and non-compliance
- Conducting thorough right to work checks on all new employees
- Identifying and carrying out follow-up checks on employees with time-limited permission to work
- Keeping records of all right to work checks
- Training staff on illegal working and right to work compliance
Need assistance?
DavidsonMorris’ business immigration lawyers specialise in all aspects of the prevention of illegal working legislation and immigration compliance.
We work with employers to provide guidance on right to work compliance consultancy and training, including auditing and reviewing processes, systems and documents, and delivering training to HR and managers responsible for conducting the checks and maintaining personnel records.
If you are facing a civil penalty, we can help. Challenging a civil penalty is a complex process. We can guide you from the outset, establishing if you have grounds to appeal and building the case to challenge the Home Office’s decision.
Contact us for specialist UK immigration compliance expertise.
Employer Checking Service FAQs
What is the Employer Checking Service (ECS)?
The Employer Checking Service is a free UK government service that allows employers to verify a worker’s right to work when they cannot provide acceptable documents.
When should an employer use the Employer Checking Service?
Employers should use the service when a job applicant cannot provide the necessary right to work documents but claims they have applied for a visa, EU Settlement Scheme status, or another form of immigration permission that allows them to work.
How does the Employer Checking Service work?
Employers submit an online request with the worker’s details, and UK Visas and Immigration checks their immigration status. If the worker has the right to work, the employer will receive a Positive Verification Notice.
How long does it take to get a response from the Employer Checking Service?
The service typically responds within five working days. Employers must not allow the individual to start working unless they receive confirmation of their right to work.
What is a Positive Verification Notice?
A Positive Verification Notice is a document issued by UK Visas and Immigration confirming that a worker has the right to work in the UK. Employers must keep this document on file as proof of compliance.
What happens if the Employer Checking Service cannot confirm a worker’s status?
If the service cannot verify the worker’s right to work, the employer must not employ them. Hiring someone without proper documentation can lead to civil penalties.
Does using the Employer Checking Service protect employers from penalties?
If an employer receives a Positive Verification Notice and follows the correct procedures, they will have a statutory excuse against civil penalties if the worker is later found to be working illegally.
Can an employer rely on a share code instead of using the Employer Checking Service?
If a worker has an online eVisa or digital immigration status, they can generate a share code through the UK Visas and Immigration online system. Employers can use this code to check their right to work without using the Employer Checking Service.
What are the consequences of hiring someone without the correct right to work checks?
Employers can face civil penalties of up to £60,000 per illegal worker, loss of their sponsor licence, and even criminal prosecution in serious cases.
Where can employers access the Employer Checking Service?
The Employer Checking Service can be accessed via the official GOV.UK website.
Glossary
Term | Definition |
---|---|
Employer Checking Service (ECS) | A free UK government service that allows employers to verify a worker’s right to work when they cannot provide documents. |
Right to Work Check | A legal requirement for UK employers to confirm that an employee has the legal right to work in the UK before hiring them. |
Share Code | A digital code generated through the UKVI online system, used by individuals to prove their right to work to an employer. |
UK Visas and Immigration (UKVI) | A division of the Home Office responsible for processing visa and immigration applications and overseeing compliance with right-to-work rules. |
Certificate of Application (CoA) | A document issued to individuals who have applied for immigration status under the EU Settlement Scheme, which can be used for right-to-work checks. |
Positive Verification Notice (PVN) | A confirmation issued by UKVI through the Employer Checking Service, proving that a worker has the right to work. |
Biometric Residence Permit (BRP) | A physical card that provides proof of an individual’s immigration status, including their right to work in the UK. |
Digital Immigration Status (eVisa) | An online record of immigration status that replaces physical documents like BRPs, accessed through a UKVI account. |
EU Settlement Scheme (EUSS) | A scheme allowing EU, EEA, and Swiss citizens to apply for settled or pre-settled status in the UK, granting them the right to work. |
Settled Status | Immigration status granted under the EU Settlement Scheme, allowing indefinite stay and full right to work in the UK. |
Pre-settled Status | A temporary status under the EU Settlement Scheme, allowing individuals to live and work in the UK with the possibility of upgrading to settled status. |
Sponsorship Licence | A licence issued by UKVI that allows UK employers to hire foreign workers under the Skilled Worker or Temporary Worker routes. |
Certificate of Sponsorship (CoS) | A reference number issued by a licensed employer to a worker applying for a Skilled Worker visa. |
Right to Rent Check | A legal requirement for landlords to verify a tenant’s immigration status before renting a property in the UK. |
Home Office Guidance | Official rules and instructions issued by the Home Office on right-to-work checks and compliance requirements for employers. |
Illegal Working Penalty | A fine imposed on employers who hire workers without the correct right-to-work documentation, up to £60,000 per illegal worker. |
Civil Penalty | A legal sanction imposed by UKVI on employers who fail to conduct proper right-to-work checks, which may include fines and loss of sponsorship licence. |
Statutory Excuse | A legal defence for employers who have correctly followed right-to-work check procedures, protecting them from penalties if an employee is later found to be working illegally. |
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
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- Anne Morrishttps://www.davidsonmorris.com/author/anne/
- Anne Morrishttps://www.davidsonmorris.com/author/anne/
- Anne Morrishttps://www.davidsonmorris.com/author/anne/