Employers can, in certain circumstances, make use of the Home Office’s online employer checking service to conduct compliant right to work checks and avoid penalties for illegal working.
There are, however, 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 those workers 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 of up to £20,000 per illegal worker.
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.
Note however that right to work checks are not required on existing employees from the EU, EEA or Switzerland if they were in the UK before 1 July 2021.
Employers can conduct these right to work checks by either:
- Checking the individual’s right to work online, if they’ve given you their share code and they have either:
- A biometric residence permit or biometric residence card or
- Settled status under the EU Settlement Scheme.
- Conducting a manual check using the individual’s original documents.
- Using an identity service provider that offers Identity Document Validation Technology (IDVT).
In some circumstances, however, it may not be possible for the employer to use any of these types of checks, for example, if the individual cannot provide the required documentation or online immigration status to prove their eligibility to work in the UK. In these cases, the employer should use the Employer Checking Service.
When to use the Employer Checking Service
Employers will only need to use this service if they are not able to check the individual’s eligibility to work online or through manual document checks.
Circumstances where you may need to use the checking service include where:
- The individual has an outstanding appeal, review or application with the Home Office.
- The individual arrived in the UK before 1989 and does not have documentation to prove their immigration status or right to work.
- The individual has a Certificate of Application (digital or non-digital) that is less than six months old and states the employer needs to ask the Home Office to check the right to work.
- The individual has an Application Registration Card, which states the work being offered by the employer is permitted.
To carry out the ECS check, you must have the individual’s permission.
Employer Checking Service form questions
The ECS is available online through the .gov website.
You will be asked a number of questions when using the online system, including the following:
- Does the employee or prospective employee have a passport from the UK, the European Economic Area (EEA) or Switzerland, or other immigration documents from the Home Office that demonstrate a right to work?
- Does this person already work for you? And if so, when did they start working for you?
- Does this person have any one of the following?
- Has this person been in the UK since before 1988?
- Where the employee or prospective employee is a family member of an EEA national and has a COA less than six months old stating they are allowed to work, or where they are an asylum seeker and hold an ARC stating they are allowed to work, have you seen the original of this document?
- Where the employee or prospective employee holds none of the documents above, has this person made an application for, or do they qualify for, settlement protection? A person can apply to settle in the UK, known as indefinite leave to remain, if they have got a residence card as a refugee or a person with humanitarian protection.
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 circumstances where the employee is from the UK, the EEA or Switzerland, or has immigration documents from the Home Office that demonstrate a right to work, then you will not be able to request a right to work check through the Employer Checking Service. However, you will still need to carry out a manual check to ensure that the employee’s documents are valid and keep copies of those documents.
You will then need to provide the following information:
- Their full name and date of birth
- Their UK home address
- Their nationality
- Their job title and the number of hours worked per week
- Any Home Office reference number or case ID
In addition, you will need to provide your business name, business type and contact information.
You will also need to see the individual’s original Application Registration Card or Certificate of Application, if this is what you’re checking.
You will be asked to enter all these details into the online form. You should receive 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.
Once the check has been completed, if the individual is confirmed to have the right to work, you will be sent a Positive Verification Notice confirming eligibility 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 right to work check comes back negative, in other words, it reveals that the employee in question is not entitled to work in the UK or undertake the work in question, you will not be able to rely on the statutory defence against a civil penalty if you employ, or continue to employ, that individual.
Remember that 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.
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.
How long does the employer checking service take?
The Home Office will typically respond within approximately five working days.
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.
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 does ECS stand for?
ECS stands for Employer Checking Service. It is an online system which allows UK employers to request verification from the Home Office that an individual has the right to work in the UK
Do you need permission to use the Employer Checking Service?
You will need permission from the individual to check their working status using the online system. You will also need the individual's Home Office reference number or case ID.
Last updated: 5 July 2022