Right to Work Check: Employer Compliance Guide

Section A: Right to Work Check Overview

If you are hiring someone to work in the UK, of any nationality, you should work on the basis that a Right to Work check is needed before they can start. The rules apply in the same way whether you employ one person or thousands across multiple sites. Every employer is expected to follow the prescribed Home Office process so that they can show they have taken reasonable steps to prevent illegal working.

When employers carry out Right to Work checks in the correct manner, they are able to rely on a statutory excuse against a civil penalty fine for illegal working, where they can demonstrate they have taken consistent and compliant measures to ensure they are only hiring individuals with permission to work in the UK and have followed the Home Office’s prescribed process in force at the date of the check.

This means it is good risk management practice to ensure your processes for conducting Right to Work checks are compliant and implemented consistently and correctly throughout your organisation.

1. What is a Right to Work Check?

A Right to Work check is a mandatory process that UK employers must undertake to verify that all of their employees have the legal right to work in the United Kingdom.

The Right to Work provisions are set out under Sections 15 – 25 of the Immigration, Asylum and Nationality Act 2006, supported by a Code of Practice and Home Office guidance, all of which are subject to change. Employers are under a duty to stay informed and meet their obligations under the relevant latest guidance, including the current version of the Employer’s Guide to Right to Work checks that applies to checks carried out on or after its implementation date.

Conducting these checks in the correct way helps employers ensure that they are hiring individuals who are legally permitted to work, and where there are allegations of non-compliance, evidence of a compliant Right to Work check can provide the employer with grounds to challenge proposed enforcement action and rely on the statutory excuse.

2. Right to Work Penalties

The consequences of failing to comply with the Right to Work Check requirements can be severe and far-reaching. Non-compliance can result in:

a. Civil Penalties: Employers can face substantial fines for employing individuals without the legal right to work in the UK. The penalties can be as high as £45,000 per illegal worker for a first offence, increasing to up to £60,000 per illegal worker for repeat offenders where a further breach occurs within three years of the previous breach.

b. Criminal Liability: In more serious cases, employers may face criminal charges, which can lead to unlimited fines and even imprisonment, if the employer knowingly employs someone without the right to work or has repeatedly failed to comply with the legal requirements.

c. Reputational Damage: Being found in breach of right to work laws can severely damage a company’s reputation. The organisation will be added to the Home Office’s published list of employers who have received illegal working civil penalties, potentially leading to negative publicity, loss of customer trust and harm to the brand’s image, which can have long-term impacts on business relationships and market position.

d. Operational Disruption: Non-compliance can result in business disruptions, including the loss of key employees who are found to be working illegally, and diverting personnel time and resources away from the normal course of business to deal with the issue.

e. Sponsor Licence Penalties: Non-compliance can result in a sponsor licence suspension or revocation, which may lead to your sponsored workers’ visas being curtailed.

Section B: Which Workers Need a Right to Work Check?

The Right to Work Check is a legal requirement that applies to all employers in the UK, regardless of the size or nature of their business, to verify that every worker in their workforce has the legal right to work in the UK.

Importantly, as part of your recruitment and onboarding procedure, pre-employment checks must be carried out indiscriminately on all prospective employees, regardless of nationality, race or ethnicity. Singling out certain classes of individual could lead to complaints of unlawful discrimination.

The Right to Work Check must be conducted for all potential employees before they begin employment. This includes:

a. Permanent Employees: Any individual hired on a permanent basis must have their right to work verified before they commence their role.

b. Temporary and Seasonal Workers: Employers must also check the right to work for temporary staff, including those hired for short-term projects or seasonal work.

c. Part-Time Employees: Part-time workers, regardless of the number of hours worked per week, are subject to the same right to work verification as full-time employees.

d. Casual Workers and Zero-Hours Contracts: Even workers on casual or zero-hours contracts, where there is no guaranteed minimum number of hours, must have their right to work checked.

e. Contractors, Gig Workers and Freelancers: While independent contractors and freelancers may not be ‘traditional’ employees, employers need to be clear who the legal employer is and whether the individual is in fact working under a contract of service. Where your organisation is the legal employer or the relationship is in substance employment, you will need to ensure right to work checks are carried out. Even where individuals are genuinely self-employed, proportionate right to work checks are strongly recommended as part of wider risk management, particularly if the employer controls how the work is carried out.

f. Volunteers: In some cases, volunteers and unpaid interns may also require a right to work check, especially if there is a contractual obligation or expectation of work similar to that of paid employees. For genuine volunteers with no contractual obligation to perform work and no expectation of payment, there is no strict legal requirement to conduct a check, although many organisations choose to do so as a matter of good practice.

In practice, employers may encounter more complex circumstances where the right to work may not be straightforward or immediately clear. For example:

a. EU, EEA, and Swiss Citizens Post-Brexit: Following Brexit, citizens from the EU, EEA, and Switzerland are no longer automatically eligible to work in the UK. Employers must now check their status under the EU Settlement Scheme or confirm they have a valid visa.

b. Student visa holders: International students typically have restrictions on the number of hours they can work during term time. Employers must check these details to understand any work limitations.

c. Seasonal Agricultural Workers: For sectors like agriculture, specific visa schemes, such as the Seasonal Worker Visa, may apply. Employers must verify that these workers have the appropriate visa for the duration of their employment.

d. Sponsored Workers: Individuals employed under sponsored work routes such as the Skilled Worker visa or Global Business Mobility visas must have their sponsorship and visa details checked. Employers must ensure they hold a valid Certificate of Sponsorship and the appropriate visa. Also, specific rules apply to sponsored visa holders taking on additional employment; they can work up to an additional 20 hours weekly in a role with another employer if it has an eligible SOC code and provided they’re still doing the job they’re being sponsored for. They will need to apply to update their visa if working more than 20 hours for a second job.

e. Family Members of Migrants: Family members of individuals who have the right to work in the UK may also be eligible to work, but employers must check their specific visa or permit conditions.

f. Asylum Seekers and Refugees: Asylum seekers may have limited rights to work, typically requiring permission from the Home Office. Refugees granted asylum in the UK have the same work rights as UK citizens. Asylum seekers with outstanding claims for over 12 months who received permission to work before 3 April 2024 can only work in roles on the old-style Shortage Occupation List. For those granted permission after 4 April 2024, only roles on the Immigration Salary List are eligible. Archived versions of the Shortage Occupation List remain available on GOV.UK.

g. Workers affected by TUPE or intra-group transfers: Where workers transfer to a new employer under TUPE or move between group entities, the new employer may in some circumstances be able to rely on historic right to work checks if these were compliant. In other cases a fresh check will be required, so employers should review the circumstances of any transfer carefully.

h. Workers based overseas or working remotely outside the UK: The statutory Right to Work regime applies where an individual is employed to work in the UK. If a worker is engaged to live and work wholly outside the UK, there is no legal requirement to conduct a UK Right to Work check, although employers should take care where overseas workers visit or spend time in the UK that this does not amount to unlawful working here.

Employers may wish to take professional advice if they are unsure about verifying eligibility to work in more complicated circumstances.

Section C: How to do a Right to Work Check

In line with government guidance on Right to Work checks, the method available will depend on the individual’s nationality and the type of immigration status they hold. Employers must use the prescribed method for that status (for example, the online service for most digital status-holders), and where more than one method is available, such as manual or digital checks for British and Irish passport holders, they should not treat people who cannot or do not wish to use digital checks less favourably.

1. Digital Right to Work Checks

Digital Right to Work checks use Identity Document Validation Technology through a certified IDSP to verify the identity of British and Irish citizens who hold a valid British or Irish passport or Irish passport card. A statutory excuse only arises where the employer uses an IDSP for this specific category and follows the process set out in the supplementary digital guidance.

2. Online Share Code Checks

Online Right to Work checks using a share code involve the individual providing a share code and their date of birth, which the employer enters into the Home Office online checking service to verify their immigration status. This is mandatory for those with digital immigration status, including holders of Biometric Residence Permits, Biometric Residence Cards, Frontier Worker Permits, EU Settlement Scheme status and eVisas.

3. Manual Right to Work checks

Manual Right to Work checks involve the employer being in physical possession of the individual’s original documents and checking them while the individual is either physically present or available over a live video link, provided the employer is holding the original documents at the time. This route applies only where the individual holds acceptable physical documents under List A or List B.

4. Employer Checking Service

The Home Office Employer Checking Service is used where the individual cannot provide acceptable documents for a manual check and cannot generate a share code for an online check. This includes circumstances where an individual has an outstanding in-time application, administrative review or appeal and their digital profile is not yet supported by the online service, or where their status (for example an ARC or certain non-digital Certificates of Application) must be verified by the Home Office.Employers will receive a Positive Verification Notice if the individual has permission to work, which provides a six-month statutory excuse.

Section D: Online Right to Work Checks using Share Codes

Employers are able to use the online checks and employee share codes instead of conducting a manual check as the single method of verifying an employee’s permission to work where the individual has:

a. A biometric residence permit or

b. Biometric residence card or

c. Pre-settled or settled status under the EU Settlement Scheme or

d. Frontier worker permit

Since 6 April 2022, BRC, BRP and FWP holders are only allowed to prove their eligibility to work through the Home Office online service. Employers can no longer 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 do 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.

Updated guidance published in July 2024 clarified that where a BRP expires on 31 December 2024 (in line with the replacement of BRPs with eVisas), the employer does not need to perform a new check until the individual’s permission is due to expire. Employers should rely on the actual visa expiry date, as shown in the online right to work check, rather than assuming the permit’s expiry date is final, even though the physical BRP card has now expired and the individual’s status is held digitally. A new check would be needed, however, if 31 December 2024 is the status expiry date shown in the online check.

The rules on conducting Right to Work checks on EU, EEA and Swiss national workers changed on 1 July 2021 following updated Home Office guidance. From 1 July 2021, all new EU, EEA and Swiss employees must show they hold valid pre-settled status, settled status or a valid visa to prove their Right to Work. It is not necessary to carry out retrospective Right to Work checks on existing EU employees after 30 June 2021, provided compliant checks were made on or before 30 June 2021 where the EEA nationals presented their valid ID or passport.

Under Home Office guidance issued on 31 August 2021, those awaiting a decision on an EUSS application will continue to have their UK residence and working rights protected while their application is pending. It is also acceptable for EUSS applicants to rely on a ‘Certificate of Application’ issued on or after 1 July 2021, along with a Positive Verification Notice through the Employer Checking Service, as proof of right to work.

Following an update in the Right to Work guidance in July 2024, employers no longer have to carry out repeat or follow up checks on pre-settled status holders; a single, pre-employment check is sufficient, provided it was conducted in accordance with the guidance in force at the time.

The online service can be found on the Home Office website, entitled ‘View a job applicant’s right to work details’. 

The individual has to give their permission for the employer to conduct the online check. If the worker agrees, they will need to obtain a unique 9-character long ‘share code‘ by completing their own online application, which the employer will need, along with the individual’s date of birth, to view their details using the online system.

The employer then completes the online Right to Work check by entering the individual’s details on the ‘checker’ section of the Home Office right to work website. You will only be able to rely on the statutory excuse by accessing the ‘View a job applicant’s right to work details’ section; it is not enough to view the individual’s details on the migrant section.

The share code for Right to Work checks begin with the letter ‘W’. Share codes starting with ‘S’ or ‘R’ are not acceptable for eligibility to work checks.

1. Right to Work Step 1 – Check

For online checks, the employer does not need to see the physical documents as the information is accessed directly from the Home Office.

If relying on an online check and share code, the employer must see the individual in person or via live video at the point of the check or before work starts to confirm the online photograph matches the person presenting themselves for work. When meeting the employee, the employer should download and save a copy of the online checks PDF document and record the time and date of meeting the employee in person or over live video on their first day.

2. Right to Work Step 2 – Retain

The employer has to keep a copy of the Right to Work check in the form of the ‘profile’ page that verifies the individual’s eligibility to work. This can be saved as a PDF or HTML file, or printed out. The copy of this page should be retained – electronically or in hardcopy – for the length of employment and for two years after employment is ended.

3. Online Checks Extended to eVisa Holders

Under the current guidance, the Home Office online service now supports many eVisa holders with outstanding, in-time applications. Where an eVisa holder tells you they have made a valid in-time application to extend or vary their permission, you should ask them for a share code and use the online right to work service.

If the online check confirms they have the right to work, it will usually give you a statutory excuse for six months from the date of the check. You then need to carry out a follow-up check before that six-month period ends or when the person’s permission is next extended.

Only where the person cannot be checked online or manually in line with the guidance (for example because their digital profile is not yet enabled, or they hold an ARC or a non-digital Certificate of Application) should you revert to the Employer Checking Service for a Positive Verification Notice.

For those eVisa holders supported by the online service, this usually removes the need to use the Employer Checking Service; ECS should only be used where an online or manual check is not possible.

Section E: Digital Right to Work Checks

Employers can use Identity Document Validation Technology (IDVT) through the use of IDSP for checks on British and Irish citizens that are beyond the scope of the Home Office online service. Under the updated Home Office framework, this falls within the wider Digital Verification Services used to verify identity for right to work purposes, but the underlying requirements remain the same: a statutory excuse only arises where the employer uses a certified provider and follows the process exactly as set out in the guidance.

IDSPs conduct remote digital identity checks on the individual and their documentation on behalf of the employer. Employers are only able to rely on the statutory excuse against a civil penalty if they follow the guidance on digital Right to Work checks. It is the employer’s responsibility to obtain the IDVT check from the IDSP and to ensure the provider is certified. It is recommended by the Home Office that checks are ‘Medium Level of Confidence’ as a minimum standard.

The Home Office issued updated guidance in February 2023 in relation to the availability of a statutory excuse when using IDVT. Specifically, IDVTs can only be relied on as part of a digital check for British or Irish citizens with a valid passport or Irish passport card, and not for manual checks or online share-code checks. The guidance prohibits the use of IDSPs for manual checks of physical papers or checks through the Home Office’s online service; “… other than where you use an IDSP expressly for right to work checks of British or Irish citizens with a valid passport (or Irish passport card), it is not possible to establish a statutory excuse against liability for a civil penalty if the manual document-based check, or online service right to work check, is performed by an IDSP.”

1. Right to Work Step 1 – Check

The employer then needs to carry out and record a visual check on the individual when they first present themselves for work. This involves being satisfied that the person in front of you is consistent with the photograph and IDVT check results. For example, you need to ensure that the photograph matches the individual and that the date of birth is plausible.

Digital checks should not be made mandatory for individuals. Employers cannot discriminate against, or treat less favourably, individuals without a passport or individuals who do not want to make use of digital checks. Employers should instead allow the individual to prove their Right to Work through a manual document check.

Digital checks using IDSPs are currently only available to holders of valid British or Irish passports, or Irish passport cards.

2. Right to Work Step 2 – Retain

Copies of the IDVT check output should be retained for the length of the individual’s employment and for two years after the employment has been terminated. These records must be clear, unalterable copies of the IDSP output, and employers should ensure they follow their internal data protection policies when storing this information.

Section F: Employer Checking Service

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 digital 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.

The ECS should also be used by employers to ask the Home Office to check an individual’s immigration status if they have an Application Registration Card or a digital or non-digital Certificate of Application that says you need to ask the Home Office to check their Right to Work.

You only need to use this service if you cannot check the applicant’s right to work online using their share code or check the applicant’s original documents. For many categories with digital status, ECS is not appropriate and an online check using a share code should be used instead.

It can take up to five days for the Home Office to advise of the individual’s status. If they have the Right to Work, a Positive Verification Notice will be issued to the employer, which acts as proof of eligibility to work for six months. During this period, the PVN can be relied on by the employer as a statutory excuse in the event of illegal working allegations.

Employers should also diarise the PVN expiry date to ensure a follow-up check is completed before the six-month period expires, particularly for individuals with time-limited permission to work. A fresh PVN or confirmation of status will be required to maintain the statutory excuse.

Section G: Manual Right to Work Checks

‘Manual’ checks refer to the employer being in physical possession of the individual’s acceptable original documentation and checking these while in contact with the individual, either meeting them face to face or using a live video link. If an online check is not possible, the employer should continue to perform manual document checks where the individual holds acceptable physical documents under List A or List B. The Home Office guidance sets out three steps to conducting a compliant manual Right to Work check.

1. Right to Work Step 1 – Obtain

The first step to conducting a check is to be in physical possession of the original documents when carrying out a check, being either physically present with the individual or virtually using live video, unless using the Home Office’s online checking service (see below). You should also check the documents in the employee’s presence, whether that is in person or over a live video link.

We advise that a copy of a future employee’s Right to Work document is taken before they start working for you. This acts as a preventive measure in the event a candidate you really wish to hire requires a work permit such as a Skilled Worker visa. By verifying the individual’s status before employment is offered, it allows you to start the sponsorship process in good time. Look at your recruitment process and find where Right to Work naturally fits in your organisation, however keep in mind that leaving it for induction day could be too late.

If an employer is to successfully establish a statutory excuse, they are required to ensure that the prospective employee’s original documents are presented to them so that the employer can examine those originals while the individual is present in person or over a live video link. Photocopies or electronic copies will not suffice as evidence of their Right to Work.

If existing employees have limited permission to remain and work, you need to ensure a follow-up check is scheduled and conducted before their current period of leave expires.

Acceptable Right to Work Documents

Depending on the individual’s immigration status at the time of the check, there will be different requirements on the type of documents to be checked and retained. Acceptable Documents for Manual Checks are set out by the Home Office on separate lists, referred to as List A and List B group 1 and List B group 2.

List A is to be used by individuals who have permanent right to work in the UK such as British citizens, ILR holders and those with an indefinite right to work, while List B is for those whose permission to work is time-limited. Individuals with digital status under the EU Settlement Scheme are treated as having an unlimited right to work but evidence this through the Home Office’s online checking service rather than List A physical documents.

Under List A, for employees who are UK passport holders, you should copy and retain the details page of their passport as proof of lawful right to work in the UK. A copy of the passport cover is no longer required. If a passport is not available, you should request, copy and retain their National Insurance number and name (e.g P45, P60, NI card or letter from a government agency or previous employers) and either a full birth certificate or adoption certificate, or certificate or registration or naturalisation as a British citizen.

If the UK passport has expired and no replacement is available, you can still accept it as a valid right to work provided that the photo on the passport is not too dated and you are satisfied it resembles the person in front of you.

EU and Swiss nationals with UK settled or pre-settled status must evidence this through the Home Office’s online checking service (as below). Those with biometric permits and UK frontier worker permits will need to provide a share code for a digital Right to Work check.

List B employees present additional risk for employers given the time-limited nature of their work permission, and the implications of hiring an employee whose permission to work has expired. You should stay on top of this.

List B group 1 are those employees with limited time to live and work in the UK, and where repeat checks need to take place on expiry of their leave. In order to constitute a valid Right to Work check and ensure a statutory excuse for your organisation, you should hold on file a copy of their immigration status document with photo to show that the employee has the correct leave and can do the work in question. You should also hold a copy of a document showing NI number and name.

List B group 2 are those visa holder employees with limited time to live and work in the UK, where repeat checks need to take place every six months. Alongside the usual documents, employers should also retain for this group: Positive Verification Note issued by UKVI alone or with: Certificate of Application to a non-EEA family member or EEA national / Switzerland that is less than 6 months old or; Application Registration Card permitting employment in question.

2. Right to Work Step 2 – Check

The documents provided then need to be checked by the employer. While employers are not expected to be experts in identifying fraudulent documents, you are required to reject any documents where it is ‘reasonably apparent’ that they are either fraudulent or do not belong to the person in front of you. For example:

a. Ensure any photographs on the documents are the same person in front of you.

b. Feel the documents. If you regularly check documents, you should get used to how authentic documents look and feel. Tilt the document and check the lighting on the holograms and MRZ.

c. When checking passports, check that all pages of the passport are present.

This includes verifying the documents as being genuine and belonging to the person to be employed. Photographs and dates of birth should be checked either face to face or by live video link, against the person presenting as the employee or potential employee. The name and personal information should all be consistent across each of the documents. Expiry dates should be checked to confirm the continued validity of any permission. Employers also have to check if there are any restrictions on the type of work that the person can take on, and confirm that the person is permitted to do the job in question.

3. Right to Work Step 3 – Retain

Record keeping is critical for Right to Work compliance. You will need to make and retain copies of the documents provided, and record the date of the check.

Copies should be legible and clear, and kept in a form that cannot be edited, such as a pdf scan or a photocopy.

A copy of the entire document should be kept, except passports, where you should copy any page with the expiry date and applicant’s details (for example nationality, date of birth and photograph) including endorsements.

The legislation requires you to retain the copies for the duration of the individual’s employment with you, plus a further two years after they leave your employment.

Also ensure you comply with the relevant data protection laws when copying and retaining the documentation. This should be detailed in a specific privacy and data protection policy which the worker is able to access.

4. Problems with Documents

If there are problems with the individual providing the required proof of eligibility to work, you may need to use the Employer Checking Service to confirm that the applicant has the Right to Work. This would usually apply where:

a. You believe the individual has an application or matter such as an appeal pending with the Home Office.

b. The individual is a Commonwealth citizen who has been resident in the UK since before 1988.

c. The individual has Application Registration Card.

d. The individual has Certificate of Application less than 6 months old.

This service is free to use, and if the individual is confirmed as having the Right to Work, the employer will be issued a ‘Positive Verification Notice’ as proof of their status.

Section H: Follow-Up Right to Work Checks

Right to Work checks must be undertaken not only on all prospective employees, but also on any existing employees whose permission to work in the UK is time-limited. For example, individuals granted leave under one of the work routes who have not yet obtained settlement will have limited leave to remain, which means the employer needs to carry out a follow-up check shortly before expiry of the employee’s current permission. This is required to maintain the statutory excuse and avoid any liability to a civil penalty.

A follow-up Right to Work check is also required where there is a significant change to a sponsored worker’s position. Guidance issued in November 2022 by the Home Office reiterates that Right to Work checks should be carried out when a sponsored worker begins a new role, even where the role is for the same sponsor, and that the check should be conducted after the UKVI change of employment application has been approved. In practice, this means diarising both immigration expiry dates and key sponsorship events such as promotions or role changes that require a new Certificate of Sponsorship.

Equally, a follow-up check must be carried out where the employer has obtained a PVN from the ECS. This is because a PVN appears on List B (Group 2) of acceptable documents, where a time-limited statutory excuse will last for 6 months. In contrast, for List B (Group 1) documents, a statutory excuse will last until the expiry date of the individual’s grant of leave. Employers should ensure their systems clearly distinguish between List B Group 1 and List B Group 2 cases so that appropriate follow-up dates are recorded and monitored.

For existing employees applying to extend their leave to stay in the UK, they should be able to continue working for their current employer pending any decision on their application, provided that the application was submitted before the expiry of their previous leave. In these circumstances, the employer’s statutory excuse against civil liability will last for 28 days from the expiry of the employee’s permission, creating a short period in which the employer should obtain a PVN. Importantly, this 28-day grace period applies only to existing employees. For new hires, the employer must delay employment until a 6-month PVN is issued if the individual cannot provide acceptable evidence for a manual or online check.

Once an employee’s permission to work in the UK has expired, unless that person has applied for further leave, it becomes illegal to continue employing them. In these circumstances, an employer may not only be liable to a civil penalty, they may also be liable to criminal prosecution. The offence of employing a migrant worker that the employer knows or has reasonable cause to believe no longer has permission to work in the UK is punishable by up to 5 years imprisonment, an unlimited fine or both.

Illegally employing migrant workers can also lead to the loss of the employer’s sponsor licence, including the loss of any overseas nationals with a legitimate right to work in the UK, together with seizure of earnings made as a result of illegal working, serious damage to the employer’s business reputation and employer-brand, and disqualification as a director. As Right to Work practices are often reviewed during sponsor compliance visits, any systemic failures around follow-up checks can have wider consequences beyond the specific case in question.

Employers should also take into account the updated July 2024 Right to Work guidance which confirms that no repeat or follow-up checks are required for EU Settlement Scheme pre-settled status holders. A single pre-employment check is sufficient for that category, provided it was conducted in accordance with the guidance in force on the date of the check. This removes a significant administrative burden for many employers but places greater importance on getting the initial check right and retaining a clear record of the status verified at the start of employment.

In relation to existing EU, EEA and Swiss workers who do not have settled or pre-settled status, or whose EUSS applications have been refused, transitional concessions that previously allowed time to regularise status have now ended. New guidance issued with effect from 13 February 2024 confirmed that where an employer becomes aware that an existing EEA worker has lost their UK Right to Work, the employer must take appropriate action, which could include terminating their employment without providing any further grace period to resolve their status. Taking professional advice is recommended in these circumstances to avoid disputes and issues in relation to any dismissal, including the risk of discrimination or unfair dismissal claims alongside illegal working allegations.

Section I: Summary

Every UK employer operates under the legal requirement to prevent illegal working by carrying out Right to Work checks. Right to Work compliance is an ongoing demand. The Home Office is looking for continued monitoring of HR processes and consistent and competent implementation to ensure ongoing compliance.

Non-compliance can result in unwanted Home Office scrutiny – with investigations, potential substantial fines and other sanctions such as criminal proceedings and reputational damage.

To avoid breaching your Right to Work duties, your organisation should have systems, policies and procedures in place to facilitate the necessary checks to be carried out. All personnel involved in recruitment and onboarding for your organisation should also be trained to understand the rules – which are subject to frequent change – and their responsibilities to comply with the regulations and avoid penalties.

Employers are also advised to ensure they conduct Right to Work checks on all new employees, and do not discriminate unlawfully against certain workers due to nationality, race or ethnicity.

Section J: Need Assistance?

DavidsonMorris are specialist business immigration legal advisers, working with UK employers to ensure compliance with their duties to prevent illegal working.

It is not uncommon for the central HR function to have developed a system compliant with the Right to Work legislation, but in practice, the Right to Work checks conducted locally in branches or offices by line managers and supervisors may not meet the required standard. This is a compliance risk and can result in Home Office enforcement action against the organisation as a whole.

All personnel involved in recruitment and onboarding (which may not just be HR and line managers) should be trained to perform the checks correctly and consistently. Regular spot-checks of documents should also be conducted by HR to ensure standards are being maintained and to identify any potential issues to be rectified.

If you have a question about any aspect of Right to Work checks and avoiding Home Office penalties, or for information about support with your Right to Work services, including e-learning, training, mock audits and consultancy, contact us.

Section K: Right to Work Check FAQs

What are Right to Work checks?

Right to Work checks refer to the process of employers verifying an individual’s eligibility to work in the UK and to carry out the work in question, in compliance with Home Office obligations. The check must be completed in the prescribed manner set out in the Home Office’s Employer’s Guide to ensure the employer can rely on a statutory excuse.

Are Right to Work checks mandatory?

Employers are required by law to conduct compliant Right to Work checks on all new employees before employment begins. A correct check provides the employer with a statutory excuse against liability for illegal working. Without completing the check in the required way, the employer cannot rely on this protection.

Do I need to re-check existing EU employees?

No. Employers do not need to carry out retrospective checks on EU, EEA or Swiss staff employed on or before 30 June 2021, provided a compliant check was completed before that date. A repeat check is not required unless the individual’s immigration status is time-limited under List B. For those with pre-settled status, updated Home Office guidance confirms that employers do not need to carry out a follow-up check.

What are the three steps of a manual Right to Work check?

Home Office guidance states a compliant manual Right to Work check comprises three stages: step 1: obtain the original documents; step 2: check the documents in the presence of the individual (in person or via live video while holding the originals); step 3: retain a clear, unalterable copy and record the date the check was completed.

Do online and digital checks follow the same three-step process?

No. For online checks using a share code, employers rely on the Home Office system rather than original documents. For digital checks using an IDSP, employers rely on the identity verification output. In both cases the employer must still meet the person in person or via live video on or before the first working day to confirm the image matches the person and must retain the verification output for the required period.

Who needs to undergo a Right to Work check?

Every new employee must undergo a check before starting work, including permanent, temporary, part-time and casual staff. Checks are also required for those on zero-hours contracts and sponsored workers. For independent contractors or freelancers, the duty applies only where the individual is working under a contract of service and your organisation is the legal employer. Volunteers only require a check where the role resembles paid work or involves obligations similar to employment.

What documents are required for a manual Right to Work check?

Acceptable documents depend on the individual’s nationality and immigration status. The Home Office sets out which documents can be accepted under List A (unlimited right to work) and List B (time-limited right to work). EU Settlement Scheme status holders evidence their status digitally and cannot use List A documents. For most non-British, non-Irish citizens with digital status, an online share-code check is mandatory.

How has Brexit affected Right to Work checks for EU citizens?

EU, EEA and Swiss citizens are no longer automatically eligible to work in the UK. Those who arrived before 31 December 2020 should hold pre-settled or settled status. Those arriving on or after 1 January 2021 require a visa under the points-based immigration system. Status for these workers must be checked online using a share code.

What is the difference between manual, digital and online Right to Work checks?

Manual checks involve examining original physical documents in the presence of the individual. Digital checks use a certified IDSP to verify British and Irish passports electronically. Online checks use a share code and date of birth to verify the individual’s digital immigration status directly with the Home Office. Only the prescribed method applicable to the individual’s status will give the employer a statutory excuse.

What is the Home Office Employer Checking Service?

The Employer Checking Service is used when an individual cannot provide acceptable documents for a manual check and cannot generate a share code for an online check. If the Home Office confirms the individual has the right to work, they issue a Positive Verification Notice, giving the employer a statutory excuse for six months.

How often should follow-up checks be conducted?

Follow-up checks are required for anyone with time-limited permission to work, and should be carried out shortly before the expiry of the individual’s permission. For PVN cases, a new check must be carried out before the six-month validity period ends. For EU pre-settled status holders, no follow-up check is required.

What are the penalties for not conducting proper Right to Work checks?

Employers can face civil penalties of up to £45,000 per illegal worker for a first breach and up to £60,000 per illegal worker for repeat breaches. There is also the potential for criminal prosecution, sponsor licence suspension or revocation, reputational damage and the loss of workers who were found not to have permission to work.

How long must I retain records of Right to Work checks?

Employers must keep records for the duration of the individual’s employment and for at least two years after employment ends. Records must be clear, legible and stored in a format that cannot be altered.

Can I accept copies or scans of documents for a Right to Work check?

Copies or scans cannot be accepted for manual checks. Employers must inspect the original physical documents while the individual is present in person or via live video. For online checks using a share code, employers do not see the original documents and instead rely on the Home Office system. For digital checks, employers rely on the IDSP output.

What should I do if I am unsure about the authenticity of a document?

If you have concerns that a document appears fraudulent or does not belong to the person presenting it, you should not accept it as evidence of the right to work. Employers can use the Employer Checking Service or take professional advice before making an employment decision.

Are there specific training requirements for staff conducting checks?

While the Home Office does not impose mandatory training requirements, employers are expected to ensure those responsible for carrying out checks understand the rules and know how to apply them correctly. Many employers use training, audits and written workflows to reduce risk and improve consistency across the organisation.

What happens if a sponsored worker changes role?

Where a sponsored worker changes into a role that requires a change of employment application, a fresh Right to Work check needs to be carried out once UKVI has approved the new application. This ensures the employer confirms the worker’s updated permission and retains a statutory excuse.

Do COVID-adjusted Right to Work checks still count?

COVID-adjusted checks carried out between 30 March 2020 and 30 September 2022 remain valid and do not need to be repeated, provided they were completed in line with the temporary rules in force at the time. Employers should retain evidence that the adjusted process was used, but no retrospective checks are required.

Can I challenge a civil penalty for a Right to Work breach?

Employers can challenge a civil penalty if they can show that the Right to Work checks were conducted correctly, or if the Home Office decision is flawed. Having a statutory excuse, maintaining accurate records and taking early advice will help support a challenge.

Section L: Glossary

Section M: Additional Resources & Links