Put simply, your organisation must have in place appropriate HR systems to check and record your employees’ immigration and working status in line with the Home Office Right to Work guidance.
Each individual must prove their Right to Work before they start employment. Employers must perform appropriate checks on all employees – this includes British nationals, EU citizens and non-EEA nationals, before they commence employment to verify their permission to undertake the work in question – whether they will be working on a permanent or temporary basis. If an individual has temporary permission to work in the UK, you are required to carry out follow up checks to verify their continued Right to Work.
Under the Home Office’s Right to Work guidance, there are a number of ways to check someone’s eligibility to work, including manual document checks, digital checks and checks using the Home Office Employer Checking Service.
In this guide, we focus on manual document checks and the documents that are acceptable to evidence the right to work.
Right to work changes & compliance
Right to work guidance has been subject to significant change in recent years, in light of changes to EU workers’ rights in the UK and as the Home Office pursues its digitisation strategy. This presents compliance risks for employers who may be conducting checks through onboarding processes that had previously been compliant under old rules, but fall short of new requirements.
Since 6 April 2022, employers can only verify the right to work status of Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) holders using the Home Office online service. Physical BRPs, BRCs, and FWPs are no longer be acceptable as proof of right to work for these individuals, even if the document has a later expiration date.
Failure to carry out the necessary checks and to maintain adequate records can result in enforcement action against the employer. Failure to meet these duties could open your organisation up to a Home Office civil penalty for illegal employment. From 22 January 2024, civil penalties are increasing to £45,000 per illegal worker for a first breach, and up to £60,000 for repeat breaches. You also risk criminal sanctions, among other ramifications.
Your organisation should be able to defend any allegations by the Home Office that an individual is being employed illegally if you can show you have met the prescribed compliance duties. The type of defence (also called the ‘statutory excuse’) available to you will depend on the circumstances, and you are advised to take professional guidance on your options if you are facing a civil penalty for illegal employment.
Types of right to work checks
There are a number of ways employers may discharge their duty to prevent illegal working:
- Digital Right to Work checks using IDSPs
- Online Right to Work checks using share codes
- Using the Home Office’s Employer Checking Service
- Conducting manual Right to Work document checks
The Home Office’s online service allows eligible migrant workers 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.
Under current rules, the online service is only available where the individual:
- Has a valid biometric residence permit or card or
- Has EU pre or settled status under the EU Settlement Scheme, or
- Has lawful status issued under the points-based immigration system, or
- Has a British National Overseas (BNO) visa, or
- Has a Frontier Worker permit
Another potential option is for employers to 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.
In some cases, the employer may have to use the Employer Checking Service (ECS). The 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.
Right to work checklist for manual checks
Home Office guidance specifies three steps to conducting compliant manual document checks:
1. Obtain acceptable Right to Work documents
You can only accept documents from the Home Office’s List A, List B Group 1 or List B Group 2. The Home Office has three different categories of ‘acceptable’ documents which deal with different types of permission and working status:
After the initial pre-employment check, you will not be required to carry out any further Right to Work checks on this person, as your organisation will have a continuous statutory excuse for the full duration of the person’s employment with you.
List B Group 1
You have a time-limited statutory excuse which expires when the person’s permission to be in the UK expires. You should carry out a follow-up check when the document evidencing their permission to work expires.
List B Group 2
You have a time-limited statutory excuse which expires 6 months from the date specified in your Positive Verification Notice. This means that you should carry out follow up checks before this notice expires.
2. Check the validity of the Right to Work documents
You must check that the documents are genuine and that the person presenting them is the prospective employee or employee, the rightful holder and allowed to do the type of work you are offering.
You must check:
- Photographs and dates of birth are consistent across documents and with the person’s appearance in order to detect impersonation.
- Expiry dates for permission to be in the UK have not passed (if applicable).
- Any work restrictions to determine if they are allowed to do the type of work on offer.
- The documents are genuine, have not been tampered with and belong to the holder.
- The reasons for any difference in names across documents e.g. original marriage certificate, divorce decree absolute, deed poll.
3. Copy the documents provided
You then have to make a formal record of the documents you have checked.
Each document has to be copied at the time the check is made. The copy must be clear, and in a format which cannot be altered or edited at a later date.
You must also record the date the check was made.
The copy then has to be retained securely by your organisation, either electronically or in hardcopy:
- Passports: any page with the document expiry date, nationality, date of birth, signature, leave expiry date, biometric details and photograph, and any page containing information indicating the holder has an entitlement to enter or remain in the UK and undertake the work in question.
- All other documents: the document in full, both sides of a Biometric Residence Permit.
This evidence must be retained for the duration of the individual’s employment and for a further two years after they stop working for your organisation.
Right to Work acceptable documents
Home Office guidance requires individuals to provide documents from the relevant list to prove their right to work.
The rules on document checks for EU nationals in the UK changed from 1 July 2021. EU nationals can no longer rely on their passport or residence card as proof of their Right to Work. Instead, they must now provide proof of their immigration status, such as having pre settled status, EU settled status or a Skilled Worker visa.
The documents that you are to check and copy must be from:
Right to Work Checklist: List A for those with indefinite right to work
- 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 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.
- 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.
Right to Work Checklist: List B Group 1 for those with time-limited permission to work
- 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 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.
Right to Work Checklist: List B Group 2
- A document issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules on or before 30 June 2021 together with a Positive Verification Notice from the Home Office Employer Checking Service.
- A Certificate of Application (digital or non-digital) issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules (known as the EU Settlement Scheme), on or after 1 July 2021, together with a Positive Verification Notice from the Home Office Employer Checking Service.
- A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man showing that the holder has made an application for leave to enter or remain under Appendix EU (J) to the Jersey Immigration Rules or Appendix EU to the immigration Rules (Bailiwick of Guernsey) Rules 2008, or Appendix EU to the Isle of Man Immigration Rules together with a Positive Verification Notice from the Home Office Employer Checking Service.
- An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.
- A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question.
Follow up checks
Where an individual presents documents from List A, no further document checks will be required during the course of their employment with your organisation.
Repeat checks are however required if the individual has presented documents from List B, ie where there is a time limitation or restriction on their right to work. Document checks must be carried out every 12 months (at least) take place or on expiry of the individual’s visa, whichever is sooner.
Where the employee presents a document from List A during a repeat check, then no further checks will be required during the course of their employment.
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. The check should be conducted after the UKVI application has been approved.
Loss of Right to Work
If during a repeat check you become aware that an employee no longer has the Right to Work, 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.
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 employment law issues, such as unfair dismissal or discrimination claims.
Take advice on the circumstances to ensure you remain compliant with your duties.
Employers are advised to take professional guidance to ensure their right to work checks are compliant under the relevant rules, to ensure the statutory excuse is available in the event of any allegations of illegal working.
The duties imposed on employers by the prevention of illegal working regime are onerous. We have seen all too many instances where, even with robust pre-employment and onboarding processes in place, employers have fallen foul of the rules.
For example, where an employee loses their Right to Work, what are your next steps? Discrimination risks abound, and you are expected to approach such situations in a fair and reasonable manner.
Also, list B employees with time-limited permission to work present a risk since there is a requirement on you to carry out repeat checks.
Your HR processes and Right to Work checklist should be sufficient in scope and quality to provide guidance where such issues arise. Seeking legal advice can also assist where you have concerns.
DavidsonMorris are specialist business immigration legal advisers, working with UK employers to ensure compliance with their duties to prevent illegal working. We offer a range of Right to Work solutions for employers, including:
- elearning software for personnel involved in recruitment and onboarding
- bespoke training packages for in-depth insight
- immigration and right to work auditing
- ongoing right to work compliance support
Right to Work checklist FAQs
How do I carry out an online right to work check?
You will need to check that the person in the photograph is the person applying for the role. You have to keep a copy of the online check response for your records and as proof of the individual's Right to Work. If follow up checks are required, these should be scheduled and actioned in good time.
What is a positive verification notice?
If the employee cannot provide the required documents, you will have to contact the Home Office to verify the individual's immigration status. A Positive Verification Notice will be issued if the individual has the Right to Work, while a Negative Verification Notice confirms that the individual is ineligible to work in the UK.
Last updated: 8 November 2023