As a UK employer, under the illegal working regime, you are not only required to conduct right to work checks on all new-starters, but also on any existing staff with a time-limited right to work in the UK. These are commonly referred to as follow up checks.
An individual’s immigration status will dictate how they can prove their Right to Work to a potential, or existing, employer.
Employees with time-limited permission, for example, are required to produce items from UKVI’s ‘List B’ to evidence identity and temporary employment authorisation, as part of the employer’s manual document checks.
For an employer to comply with its duty to prevent illegal working, every employee should be onboarded in line with Home Office guidances using either digital
For employers, managing List B documentation is an area of risk. The Right to Work status of affected employees is by definition subject to change – and employers must stay on top of these changes.
What can employers do to effectively manage their List B employees, and reduce the risk of non-compliance and threat of civil penalty?
The following guide looks specifically at right to work follow up checks and when these are needed. We also look at the difference between List A and B right to work documentation when conducting a manual check, with a particular emphasis on List B documents, from what these are and when follow up checks must be carried out to remain legally compliant.
Ensuring right to work compliance
Your general duties as an employer when carrying out manual document checks are to:
- check and keep copies of original, ‘acceptable’ documents before someone starts working for you;
- carry out repeat checks at least once every 12 months if a person has a time limit on their stay; and
- not employ a person in breach of any restrictions such as type of work or the amount of hours they can work.
When conducting an in-person manual right to work check, the prospective employee will be required to provide certain original documents from one of two lists: List A and B right to work acceptable documents.
In the context of List A documents, this could be, for example, where a British or Irish national does not have a valid passport, making it impossible to instruct an IDSP to digitally verify that worker’s identity, but they can provide an expired passport. As an expired British or Irish passport is a List A acceptable document, and provided you conduct the check correctly, you will establish an ongoing statutory excuse against civil liability.
Equally, if an overseas national provides you with a current immigration status document with an endorsement from the Home Office indicating that they are allowed to stay in the UK indefinitely, together with an official document evidencing their name and National Insurance (NI) number issued by either a government agency or previous employer, you will again establish a continuous statutory excuse against civil liability. Importantly, even though most migrant workers can now prove their lawful immigration status by providing you with a share code to view their right to work using the online Right to work Checking Service, they cannot be forced to grant you access. In these cases, so long as their status is not held in digital format only, you can instead conduct a manual right to work check.
In the context of List B documents, these will only evidence a time-limited right to work in the UK. This means that if a worker provides you with documents from List B, in order to obtain an ongoing statutory excuse against civil liability you must conduct a follow up check in due course. However, the point at which a second check will become necessary will depend on whether you have been given documents from List B Group 1 or List B Group 2.
Acceptable documents for manual right to work checks
The Home Office sets out two definitive lists of ‘acceptable’ Right to Work documents, applicable by the nature of the permission an employee has to work in the UK:
- List A documentation – to be checked by the employer before commencement of employment where an individual has an ongoing Right to Work in the UK. This could include a British citizen, or a person with UK settled status.
- List B documentation – to be checked by the employer before commencement of employment and every 12 months thereafter where the individual has a time-limited Right to Work in the UK.
Production of a valid, original List A document is sufficient to establish you as an employer have met your duty for checking an employee’s Right to Work for the duration of their employment with you.
List B Group 1 documents apply where a person has limited leave to remain or enter the UK, restricting the duration or type of activity permitted.
Original copies of the documents or combination of documents in List B show that a person is allowed to work in the UK for a limited period of time. They will provide you as an employer with a statutory excuse against a civil penalty for up to 12 months from the date on which you carry out the checks, if you correctly follow the 3 step process above.
You are then required to carry out additional, follow up checks at least every 12 months on employees relying on List B documentation.
Where an individual’s leave expires during the period of 12 months, you should carry out a check at the point of expiry to verify their continued Right to Work.
You may at this point be presented with a List A document, in which case, you have met your duty for the duration of the person’s employment with you. You are no longer required to carry out annual checks on that employee.
Should you be presented with items from List B, the 12-month cycle starts again.
What are the List A documents?
For a continuous statutory excuse:
- A passport (current or expired) showing 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 passport card (in either case, whether current or expired) showing that the holder is an Irish citizen.
- A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted unlimited leave to enter or remain under Appendix EU(J) to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.
- 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 birth or adoption certificate issued 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[footnote 3].
- 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.
What are the List B documents?
There are two different groups when it comes to List B documents:
- List B Group 1 documents: where a time-limited statutory excuse against civil liability will last up until the worker’s permission expires, and
- List B Group 2 documents: where a statutory excuse will last for just six months.
List B Group 1
Where the statutory excuse is valid until the expiry of permission to enter or remain:
- 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 document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted limited leave to enter or remain under Appendix EU(J) to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.
- 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
Where the statutory excuse is valid for six months:
- A Home Office issued document showing that the worker has applied for leave under the EUSS on or before 30 June 2021, together with a Positive Verification Notice (PVN) from the Employer Checking Service;
- A digital or non-digital Home Office issued certificate of application showing that the worker has applied for leave under the EUSS on or after 1 July 2021, together with a PVN from the Employer Checking Service;
- A document issued by either the Bailiwick of Jersey or Guernsey, or the Isle of Man, showing that the worker has applied for leave under the relevant Immigration Rules, together with a PVN from the Employer Checking Service;
- A Home Office issued application registration card stating that the worker is permitted to do the work on offer, together with a PVN from the Employer Checking Service;
- A PVN issued to you by the Employer Checking Service, which indicates that the worker may live in the UK and is permitted to do the work on offer.
The Home Office Employer Checking Service is to cover those cases where a worker has made a valid and in-time application for further leave to remain, but a decision is still pending on their application. Their right to work will continue until they are notified of any Home Office decision, or determination of any review or appeal, although it will not be possible to conduct either an online or standard manual right to work check in these circumstances. You will instead need to obtain a PVN using the Employer Checking Service.
List B Group 2 – A complicating factor
At the point of check, you may be presented with documents from ‘List B Group 2’, or the individual may be unable to present any acceptable document from List 2, because:
- the individual’s visa is due to expire; or
- the individual is appealing to extend their stay; or
- an individual is awaiting an application decision by the Home Office.
In these circumstances you are required to contact the Employer Checking Service to receive a Positive Verifiation Notice from the Home Office, confirming the continued eligibility of the individual to work for the duration that their application is outstanding and until their visa is approved.
What are right to work follow up checks?
To help prevent illegal working, all UK employers must conduct prescribed right to works check on every new recruit, regardless of colour, ethnicity or nationality. They must also carry out a further check on anyone with a time-limited right to work in the UK or to do the work on offer. This essentially means that if any initial right to work check reveals that a migrant worker is in the UK with limited leave, you will be required to undertake a further check, in most cases shortly prior to expiry of their existing immigration permission.
By conducting a follow up check, where required, you can help to prevent those without ongoing lawful immigration status from working for you illegally. This will also allow you to retain a statutory excuse against liability for a civil penalty of up to £20,000 if the Home Office later discover that you are employing an illegal worker. The fact that you have correctly conducted a pre-employment right to work check will not provide you with a defence to any civil penalty in circumstances where a subsequent check is needed.
When are right to work follow up checks needed?
When you first carry out a right to work check on a new-starter, how you conduct that check will depend on the nationality of the worker and the nature of their immigration status. For example, for British and Irish nationals with a valid passport, you can conduct a check using an Identity Service Provider (IDSP). By instructing a certified IDSP to digitally verify the worker’s identity using Identity Document Validation Technology (IDVT), you can delegate parts of the checking process. In these circumstances, provided the check is done correctly, you will establish a statutory excuse for the duration of that person’s employment.
In the case of migrant workers, including EEA and Swiss nationals with status under the EU Settlement Scheme (EUSS), and other overseas nationals with immigration status held in digital format, you can conduct a right to work check using the online Right to Work Checking Service. In these instances, the employee will be required to provide you with a share code from the section of that service called ‘Prove your right to work to an employer’, allowing you to view their status under the employer’s section at ‘View a job applicant’s right to work details’. If the employee has either settled status under the EUSS or indefinite leave to remain, they will be classed as having a continuous right to work in the UK, and this again will give you a statutory excuse for the duration of their employment.
In contrast, if the employee has pre-settled status under the EUSS, or limited leave, there will be a time limit on how long they will be legally allowed to work in the UK. In these circumstances, you will need to conduct a follow up check when their status is due to expire, where the online service will advise when a second check must be carried out. There is, however, no requirement to conduct retrospective checks for EEA & Swiss nationals that were employed by you on or before 30 June 2021. You will still have a statutory excuse, even if they only had pre-settled status when they first started work, so long as the initial right to work check was carried out in accordance with the guidance in place at the time.
Finally, if you conduct a manual document check, whether or not a follow up check will be needed will depend on whether the prospective employee provides you with documents from either List A of acceptable documents or List B.
How to do a right to work follow up check
Having conducted a manual right to work check on a new recruit, and having been given acceptable List A and B right to work documents, a clear note must be made at that stage as to when a follow up check will be needed, ie; in those cases where the worker has only been able to provide documents from List B. Importantly, it is no longer possible to conduct right to work checks using the temporary adjusted remote procedure as permitted during the COVID-19 pandemic. This allowed employers to check the validity of documents in the presence of the worker via live video link, but this process ended on 30 September 2022.
Equally, having checked the immigration status of a prospective employee using the online Right to Work Checking Service, where their permission to work in the UK is time-limited, you must again make a note of when a follow-up check will be needed.
In any scenario in which an employee has a time-limited right to work in the UK, you may find that, at the point at which a follow-up check is needed, the employee is unable to verify their right to work because an application for leave to remain is pending with the Home Office. This means that you will need to contact the Employer Checking Service to obtain a PVN. This also means that you will need to conduct a further follow up check after 6 months, at which stage the employee should have a decision on their application.
Fortunately, for existing staff applying to extend their permission to live in the UK, they can usually continue to work for you pending any decision on their application, provided their application was submitted before their existing leave expired. In these circumstances, your statutory excuse against civil liability will last for 28 days from expiry of their permission, in this way enabling you to obtain a PVN from the Employer Checking Service. This is in contrast to initial right to work checks, where you would need to delay the worker’s start date until you have received confirmation of their right to work by way of a PVN.
Loss of Right to Work
If someone loses the right to work in the UK whilst working for you, you can no longer employ them. If you establish that an employee no longer has the Right to Work in the UK, or that they are in breach or excess of their permission by being employed by you (e.g. number of working hours) and you continue to employ that person, you become liable for a civil penalty and the criminal offence of knowingly employing an illegal worker.
By continuing to employ them, you will not only risk liability for a hefty civil penalty, but you will also expose yourself to a risk of prosecution. This is because if you know, or even have reasonable cause to believe, that an individual does not have permission to continue to undertake their job role, you will be guilty of a criminal offence.
The penalties for the offence of knowingly employing an illegal worker is a custodial sentence of up to 5 years, an unlimited fine, or both. The worker themselves will also be guilty of the offence of illegal working for which they may go to prison and be fined.
Additionally, by employing a worker illegally, you risk losing any Home Office approved sponsor licence. If your licence is revoked by the Home Office, this will mean that any other migrant workers that you employ will also lose their right to work for you, even if they have a legitimate right to work in the UK and do the work in question. A decision to review your sponsor licence will also impact your ability to obtain a licence in the future.
It is best to seek advice as soon as you become aware of an employee’s loss of permission before taking action. Instant dismissal of an employee who no longer has the Right to Work can in some cases give rise to unwanted and costly employment law issues, such as unfair dismissal or discrimination claims.
The Home Office for example offers an advisory service if you are concerned about dismissing a worker who no longer has a Right to Work.
Mitigating List B Management Risks
The potential for List B employees’ working status to change during the course of employment creates an area of risk for employers which requires close and careful management.
However, you must at any one time be able to accurately confirm the status of every employee in your organisation.
How do you achieve this when you are managing a sizeable volume of checks, all running to different schedules?
And where Home Office intervention is involved, for example for an appeal or overstayer application, the issues multiply. Notwithstanding the need to follow your internal HR processes fairly, each case must be taken on its own merit and timescales.
How can employers and HR teams ensure control and achieve effective List B document management without unnecessary drain on resource?
Automate your systems
The most effective approach to managing List B documents is through an automated solution.
Once you have been presented with the relevant documentation, you are under a duty to take reasonable steps to check its validity and make and retain copies in a format which cannot be altered.
The copies should be stored safely to satisfy compliance with your duties by, for example, uploading them to a List B Management system.
In addition, it is important that repeat checks on List B personnel are recorded as per UKVI guidelines and synced with the original record. An effective solution will sync the data into your HR or payroll system immediately.
Also, automated reports on visa expiry dates for List B Group 1 and List B Group 2 employees are invaluable prompts for HR teams to check on the progress of employees’ outstanding application.
Be clear on employees’ duties
Employees must be made aware of their duty to notify you of any change in their circumstances or working status, and the wider requirements on them to manage their status appropriately. Employers should provide support to personnel, encouraging them to be proactive in respect of:
- the conditions attached to their respective visa status;
- their responsibility to advise HR of any changes which could impact on their status;
- the type of documents they should be collating for their next visa extension; and
- any travel plans or other considerations which could impact on the scheduling of their extension applications.
Our UK business immigration specialists are highly experienced in helping employers meet their Right to Work obligations. We support with the development and implementation of effective and compliant processes and procedures, supported by personnel training and best practice advice to ensure consistent and compliant eligibility checks and to reduce the risk of Home Office enforcement action.
In particular, we provide expert guidance on managing the risks associated with List B employees and those with time-limited permission to work, as well what to do if you establish that an individual has lost their Right to Work. Since your options will depend on the specific facts, taking advice will ensure you take appropriate action while mitigating potential risks of unlawful discrimination or unfair dismissal.
To discuss how we can improve the efficiency and impact of your immigration processes, and support your personnel in relation to Right to Work compliance, please contact us.
List B Right to Work FAQs
What can I use as proof of right to work in the UK?
The documents you will need to provide are contained in Lists A and B of the Home Office's acceptable documents.
What is the employer checking service?
In some cases, the worker may not be able to provide the documents required under the relevant List, in which case the employer should use the Home Office's Employer Checking Service to verify the Right to Work.
What documents are proof of right to work?
There are various documents to prove a person’s right to work in the UK, known as List A and B right to work documents. List A documents show a permanent right to work and List B documents a time-limited right.
What documents count as proof of right to work in the UK?
There are two lists of documents issued by the Home Office that can prove the right to work in the UK of new-starters: List A and List B.
Last updated: 26 November 2022