Right to Work Checklist

Right to Work Checklist for Immigration Compliance

As a UK employer, you are required by law to check and record the immigration status of every employee, as it relates to their right to work and live in the UK.

The Home Office issues guidance for employers prescribing the Right to Work checklist which you must take to meet the required standards for compliance,

This means carrying out document checks on all applicants 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.

Each individuals is to provide valid evidence of their Right to Work in the form of valid, acceptable documentation. The checks must be carried out on all employees – this includes British nationals and EU citizens as well as non-EEA nationals.

Where 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.

Failure to meet these duties could open your organisation up to a Home Office civil penalty for illegal employment – potentially making you liable for fines of up to £20,000 per breach, 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 by you where 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.

Right to Work checklist: three steps to compliance

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 checklist:

1. Obtain acceptable 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:

  • List A: 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 documents presented

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

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

The documents that you are to check and copy must be from:

LIST A

  1. A passport showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.
  2. A passport or national identity card showing the holder, or a person named in the passport as the child of the holder, is a national of a European Economic Area country or Switzerland.
  3. A Registration Certificate or Document Certifying Permanent Residence issued by the Home Office, to a national of a European Economic Area country or Switzerland.
  4. A Permanent Residence Card issued by the Home Office, to the family member of a national of a European Economic Area country or Switzerland.
  5. A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK.
  6. 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.
  7. 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.
  8. A full birth or adoption certificate issued in the UK which includes the name(s) of at least one of the holder’s parents or adoptive parents, 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.
  9. 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.
  10. 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.

LIST B

List B Group 1

  1. 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.
  2. A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder which indicates that the named person can currently stay in the UK and is allowed to do the work in question. 3. A current Residence Card (including an Accession Residence Card or a Derivative Residence Card) issued by the Home Office to a non-European Economic Area national who is a family member of a national of a European Economic Area country or Switzerland or who has a derivative right of residence.
  3. 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

  1. A Certificate of Application issued by the Home Office under regulation 17(3) or 18A (2) of the Immigration (European Economic Area) Regulations 2006, to a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old together with a Positive Verification Notice from the Home Office Employer Checking Service.
  2. 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.
  3. 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.

Right to Work Employer Risks

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.

Right to Work Guidance for Employers 

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

If you have a question about any aspect of Right to Work compliance, you can view the most recent Home Office guidance or contact us for assistance.

By |2018-03-12T08:54:52+00:00March 9th, 2018|Comments Off on Right to Work Checklist