Foreign nationals must hold valid immigration status to be able to live and work legally in the UK. Employers are required by law to verify the immigration status of all workers or face Home Office enforcement action.
In this guide, we look at how to check someone’s immigration status before you hire them, when further follow-up checks are required during the course of their employment and the issues of failing to carry out right to work document checks.
How to conduct a right to work check
There are now a number of ways employers can conduct compliant eligibility to work checks:
- Online Right to Work checks
- Digital Right to Work checks
- Employer Checking Service
- Manual Right to Work checks
How can you check someone’s immigration status online?
The type of permission needed will depend on several factors, such as the individual’s nationality and residence status. For eligible EEA and Swiss nationals, this will typically include permission under the EU Settlement Scheme (EUSS), or for non-EEA nationals and EU citizens without settled or pre-settled status under the EUSS, this will usually be by way of a visa or proof of settled status.
The easiest and quickest way to check someone’s immigration status and right to work is using the Home Office’s online service.
The online service allows the migrant worker to provide their employer with a share code which is then used to view their right to work in the UK. The online service operates on the basis of the migrant worker first accessing their own Home Office right to work record, where they can then share this information with someone else, including their employer, using a code generated giving you permission to view their status.
There are three basic steps to carrying out an online check of someone’s immigration status:
- view the applicant’s right to work details by inputting the share code, plus their date of birth
- check that the online photograph matches the applicant
- retain a clear copy of the response provided by the online service, storing that response securely by way of electronic or hardcopy for the whole of the individual’s employment and for a period of at least two years afterwards.
The online checking service makes immigration status checks much simpler and more streamlined for employers than manual checks. It also provides greater security, as you’ll not need to rely on physical documentation, reducing the risk of forged documents being given to you by a prospective employee.
The information from an online check is provided in real-time, directly from Home Office systems, allowing you to instantly check the details of an applicant’s right to work in the UK, including the types of work that they’re allowed to do and if there’s a time limit to doing this work.
Currently, the online checking service supports right to work checks in respect of anyone holding a biometric residence permit, a biometric residence card, settled or pre-settled status under the EU Settlement Scheme, status issued under the UK’s points-based immigration system, a British National Overseas (BNO) visa, or a Frontier Worker permit.
Alternatively, employers can use digital right to work checks. Using Identity Document Validation Technology (IDVT) through the use of an IDSP, employers can carry out checks on British and Irish citizens that are beyond the scope of the Home Office online service.
Finally, the Employer Checking Service (ECS) is a free online service from the Home Office that allows employers to meet their duty to conduct Right to Work checks on employees in circumstances when the individual is unable to use online checks or provide acceptable documentation for manual checks. This may be because they are awaiting a Home Office decision on a pending application, review or appeal, or if they came to the UK prior to 1989 and do not have official documents to prove their status.
How can you check someone’s immigration status manually?
A migrant worker doesn’t have to agree to provide you with a share code to check their immigration status using the online checking service. In these circumstances, or where their immigration status is otherwise unavailable to view online, you can conduct a manual check of their right to work documents, such as their passport or biometric residence permit.
As with an online check, there are again three basic steps when conducting a manual check:
- Ask to see the applicant’s original documents from either List A or List B of acceptable documents for a manual right to work check found on GOV.UK.
- Check that the documents provided are valid, with the applicant present either face to face or under current relaxed rules until April 2022, via video link.
- Make and retain copies of the documents in a format that cannot be manually altered, recording the date you made the check, and securely storing these documents for at least two years after that individual has stopped working for you.
When conducting a right to work check manually, you must ensure that:
- the applicant’s documents are genuine and haven’t been tampered with
- the applicant is the rightful holder of the documents provided
- the photos look like the applicant and are the same across all the documents
- if two documents give different names, the applicant has supporting documents showing why these are different, such as a divorce decree, marriage certificate or deed poll
- the dates of birth are the same across all of the documents
- the dates for the applicant’s right to work in the UK haven’t passed
- the applicant has permission to do the type of work that you’re offering, taking into account any restrictions, such as a limit on how many hours they can work
- for students, you must see documentary evidence of their study and vacation times
Right to work changes from April 2022
From 6 April 2022, employers will be required to conduct online checks for new employees who are Biometric Residence Card (BRC), Biometric Residence Permit (BRP) or Frontier Worker Permit (FWP) holders, as employers will no longer be able to accept physical BRPs, BRCs or FWPs as evidence of the right to work. This applies even where such a document states a later expiry date. The changes will not apply retrospectively to BRC or BRP holders employed up to and including 5 April 2022, rather the previous requirements on document checks will continue to apply for the employer to discharge their duty under the prevention of illegal working regime.
What happens if you don’t check someone’s immigration status?
All UK employers have a responsibility to prevent illegal working by conducting prescribed right to work checks before hiring someone. In this way you can ensure that a person isn’t disqualified from doing the work in question by reason of their immigration status. If you fail to check the immigration status of an applicant before taking them on, you may be liable to a civil penalty of up to £20,000 if that person is later found to be working illegally for you.
Where a check has been properly conducted, an employer should be able to establish a statutory excuse against any civil liability. However, if you fail to conduct a check, or to do so properly, before employing someone — or you either know or have reasonable cause to believe that you’re employing someone who doesn’t have the right to work in the UK and you hire them anyway — you won’t have an excuse against liability for a civil penalty.
It’s also a criminal offence for you to employ someone who is subject to immigration control if they’re disqualified from working by reason of their immigration status, and you know or reasonably believe that this is the case. This includes where you’re aware or suspect that a worker doesn’t have leave to enter or remain in the UK, any prior permission has expired, or they’re not permitted to do certain types of work. Employing illegal migrants is punishable by imprisonment of up to five years, an unlimited fine or both.
On a final cautionary note, additional sanctions may flow from failing to check an applicant’s immigration status, including a possible downgrade, suspension or revocation of your sponsor licence, impacting your permission to hire migrant workers.
How often do you have to check an employee’s immigration status?
To be able to establish a statutory excuse against a civil penalty, you must check the immigration status of all prospective employees before they start employment and only hire a migrant worker having conducted a prescribed right to work check.
If the individual’s right to work is not time-limited, for example if they have UK indefinite leave to remain or EU settled status, there’s no requirement for you to repeat the check. However, if that person has time-limited permission, you must conduct a follow-up check shortly before it’s due to expire.
For example, an EEA or Swiss worker with pre-settled status under the EU Settlement Scheme will initially be granted the right to live and work in the UK for a period of 5 years. However, once this permission has expired, unless that person has been granted full settled status, it will be illegal to continue to employ them. Equally, a migrant worker may have limited leave to remain in the UK under a work visa and will need to apply for an extension of that leave before it expires.
Right to work checks should also be carried out when a sponsored worker begins a new role, even where the role is for the same sponsor. The check should be conducted after the UKVI application has been approved.
In the same way that you may be liable for a civil penalty if you fail to carry out an immigration status check before employing a migrant worker, you may also face a fine if you fail to carry out a follow-up check for someone with time-limited permission to be in the UK.
What happens if someone cannot prove their immigration status?
If an applicant or existing employee cannot show their documents or online immigration status, you must ask the Home Office to check their right to work using the online ‘Employer Checking Service’. This could be where an applicant arrived in the UK before 1989 and doesn’t have any documents to prove their immigration status. It could also be because an existing employee has an outstanding appeal, review or application with the Home Office.
To request a check, you’ll need to provide:
- the details of your business
- the employee’s name, date of birth, nationality and home address
- their job title and the number of hours worked per week
- their Home Office reference number or case ID, where applicable.
Having requested a check using the Employer Checking Service, if the applicant or employee in question is permitted to work in the UK you should receive a Positive Verification Notice. You’ll need to retain this for your records, as with any other form of immigration status check.
If an existing employee is in the process of applying to extend their permission to work in the UK, they should usually be able to carry on working for you pending any decision on their application, although that application must have been submitted prior to expiry of their existing leave. Your statutory excuse against civil liability will continue from the expiry date of your employee’s permission for a further 28 days to enable you to obtain positive verification. This grace period does not, however, apply to any Home Office checks carried out before employment commences, where you should delay employing the individual until you’ve received written confirmation of their right to work.
You must also use the Employer Checking Service to check someone’s immigration status if either they have a Certificate of Application, digital or non-digital, that states you need to ask the Home Office to check their right to work, or an Application Registration Card. Application Registration Cards must state that the work that you’re offering is permitted.
How to check the immigration status of an EU citizen
Under the EU Settlement Scheme, EEA and Swiss nationals living in the UK by 31 December 2020 were eligible to apply for either settled or pre-settled immigration status prior to the 30 June 2021. Equally, employers were given a grace period up until this deadline date, where you could continue to check an EEA or Swiss applicant’s passport or national identity card to confirm their right to work. This is no longer possible. Since 1 July 2021, with the exception of Irish citizens, an EEA or Swiss worker must be able to show valid immigration status under either the EU Settlement Scheme or by way of a work visa in the same way as other foreign nationals. They can no longer rely on an EEA passport or national ID card to prove their right to work.
However, under the EU Settlement Scheme, EEA and Swiss nationals will not have a physical document confirming their immigration status, instead their status will be held in a digital format. This means that where someone has status under the scheme, you must conduct their check electronically, and cannot refuse their application based on them being unable to provide physical proof of their immigration status.
It’s also worth noting that for existing EEA and Swiss employees, according to the latest Home office guidance, there’s no requirement to make retrospective checks or conduct follow-up checks if they started working for you before 1 July 2021, and provided either a passport or valid national identity card to evidence their right to work.
Contact DavidsonMorris’ business immigration solicitors for expert advice on compliance with the UK right to work regime.
Checking someone’s immigration status FAQs
How can I check someone's immigration status?
Immigration status can be checked online using the Right to Work Checking Service, although any prospective worker will first need to access and view their Home Office right to work record and then provide you with a share code.
How do you check if someone is a UK resident?
You can check if someone is a UK resident by asking to see their British passport, or to provide a UK birth or adoption certificate, plus an official government letter or document showing both their name and National Insurance number.
What is evidence of immigration status in the UK?
There are three ways of evidencing immigration status in the UK: a manual check of an individual’s immigration documents, using the online Right to Work Checking Service or using the Employer Checking Service.
Last updated: 18 December 2022