To avoid civil penalties and the possibility of criminal prosecution, employers must scrutinise the working documents produced by their employees and in certain circumstances contact the Home Office for a Positive Verification Notice by using the Employer Checking Service.
When hiring any new employee, organisations must follow the prescribed requirements in order to obtain the ‘statutory excuse’ and so avoid a civil penalty for illegal employment.
These prescribed requirements essentially require an employer to verify an employee’s working status prior to offering them employment.
Where relevant, employers must conduct follow-up checks to ensure that their employee’s status remains valid.
While this sounds simple in theory, the task may become problematic where an employee is unable to produce the required documentation that evidences their right to work in the UK. In such cases, the employers can use the Home Office’s Employer Checking Service and seek a Positive Verification Notice to prove eligibility to work.
Proving eligibility to work
Changes to the UK Right to Work regime over recent years mean there are now several ways that an individual can prove their eligibility to work.
These include providing a share code to the employer to conduct an online check; or providing the employer with certain acceptable documentation, as prescribed within Home Office guidance. A document from List A of the guidance will demonstrate that the holder has an indefinite right to work in the UK without restriction.
If an employee produces a document from List A, such as a British passport, the statutory excuse will apply for the duration of employment.
List B contains documents that demonstrate the holder has a time-limited right to work in the UK.
If an employee produces a document from List B, an employer must conduct follow-up checks when the right to work displayed in the document has expired.
In some cases where the individual cannot provide the required documentation from the relevant list, the employer may have to use the Home Office’s employer checking service to establish the individual’s working status, which may result in a Positive Verification Notice being issued.
Positive Verification Notices
An employer is required to contact the Home Office and verify that a person had the right to work in the UK, if the individual cannot show their documents or online immigration status. This would be due to
- a Certificate of Application, less than six months old, indicating that the holder is permitted to undertake the work in question;
- an Application Registration Card, indicating that the holder is permitted to undertake the work in question; or
- no acceptable documents can be produced because the person has an outstanding application with the Home Office or appeal/administrative review against the Home Office.
Where this verification is required, the Home Office’s Employer Checking Service (ECS) can be contacted via their website. The Employer Checking Service is a free online service.
Within five working days, the ECS will respond with either a Positive or Negative Verification Notice.
A Positive Verification Notice confirms that an employee presently has the right to work in the UK. An employer can rely on this document to establish the statutory excuse for the period the Notice is valid.
A Negative Verification Notice confirms that an employee does not have the right to work in the UK.
Any employer that continues to employ a person after receiving a Negative Verification Notice may be liable to civil and criminal penalties.
Pending applications, appeals or administrative reviews
Where an employee has an application, appeal or administrative review pending, their continued right to work will depend on whether they have commenced that process within the prescribed time period.
If a person makes an application to extend or vary their leave to stay in the UK before their current leave expires, any existing right to work will continue until the application is determined. The Home Office will provide a Positive Verification Notice in these circumstances.
Appeals and administrative reviews must typically be made within 14 days of the original decision. If made within that time, any existing permission to work continues during the review period.
Administrative reviews may be heard outside of this time period if the Home Office considers it would be unjust not to do so. Where this occurs, leave to work will continue from the date the administrative review is accepted.
If at any stage an employee can present a document from List A or List B: Group 1, verifying that their application, appeal or administrative review has been determined favourably, then the statutory excuse will be established by checking these documents in the usual way.
Only a prescribed document or a further Positive Verification Notice will establish the statutory excuse. A letter from a solicitor indicating that an appeal or administrative review has been successful is insufficient.
Validity of positive verification notices
In the first instance, where an employee provides an employer with a document that requires a Positive Verification Notice, there is a 28-day grace period where the statutory excuse will continue while the employer contacts the Home Office.
This grace period does not apply to prospective employees that have not yet commenced employment.
In these circumstances, the employment should be delayed until a Positive Verification Notice is received.
If a Positive Verification Notice is received, the employer will be able to rely on the Notice to support the statutory excuse for six months from the date of receipt.
However, as is always the case, if at any time an employer becomes aware that the employee actually does not have the right to work (if, for example, an employee has had their application or review rejected), then the statutory excuse will no longer be valid.
Employers may also face criminal prosecution where they should reasonably have been aware that the employee did not have the right to work.
We have substantial experience advising employers on right to work compliance and avoiding and appealing civil penalties. If you have any queries about civil penalties or the working status of your employees, please contact one of our team.
Positive verification notices FAQs
What is a positive verification notice?
A Positive Verification Notice confirms to an employer that a job applicant or employee has a valid right to work in the UK. An employer can rely on this document to establish the statutory excuse for the period the notice is valid.
What does a negative verification notice mean?
A Negative Verification Notice confirms that an individual does not have the right to work in the UK. Any employer that continues to employ the individual having received the negative notice is in breach of the prevention of illegal working regulations and may be liable for a civil penalty.
What counts as proof of eligibility to work in the UK?
Under a manual check, the individual has to present documents from either List A or List B of the Home Office guidelines to confirm their right to work. The list to use will depend on the individual's UK immigration status, for example, whether they have settled status or time-limited permission to work in the UK.
How long does it take to check right to work?
When using the employer checking service, the verification notice is usually returned within minutes, but can sometimes take up to an hour.
How can DavidsonMorris help with positive verification notices?
DavidsonMorris are experienced UK business immigration lawyers. We work with employers of all sizes and from across the economy to support with right to work compliance, sponsor licence applications and management, as well as visa and Home Office application management.
Last updated: 20 October 2022