Right to Work Checks: Guidance for Employers
As a UK employer, you have a legal obligation to comply with prevention of illegal working legislation.
Specifically, this requires you to conduct basic documentation checks on every UK-based employee to verify that any individual you employ has the requisite permission to perform the work on offer.
Conducting Right to Work checks correctly and as prescribed by law offers employers a defence in the event of an issue with the immigration or working status of any of your employees.
Importantly, as part of your recruitment and onboarding process, the checks must be carried out indiscriminately on all prospective employees, regardless of nationality, race or ethnicity. Singling out certain classes of individual could equate to discrimination.
Coronavirus adjusted Right to Work checks
As an emergency measure during the COVID-19 crisis, the Home Office has relaxed some of the requirements on employers to comply with the Right to Work regulations.
The changes deal specifically with the duty to verify workers’ ID in person.
Given the nationwide lockdown and closure of workplaces across the UK, the Home Office has advised that with effect from 30 March 2020, Right to Work checks can now be conducted by video link.
Under the new, temporary rules, employers can ask workers to submit digital copies of their identification documentation, by email or an appropriate app, rather than having to provide the original document in person.
The employer is then to verify the individual’s ID via a video call by asking the individual to show the original document during the call and to satisfy that the person on the call is the same person in the ID.
If verified, the employer should keep a record of the check by marking it with the following words, as prescribed by the Home Office: “adjusted check undertaken on [insert date] due to COVID-19”.
If the individual cannot provide an acceptable form of documentation, the employer is to use the Home Office’s online Employer Checking Service and await a Positive Verification Notice where the worker has valid Right to Work.
Those that require a follow-up Right to Work check using the emergency measures should be marked as: “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.”
Following on from the crisis, once the Home Office has advised that the temporary measures have been lifted and the usual requirements apply (as below), employers will have 8 weeks to perform a standard Right to Work check on those employees who had been subject to the adapted verification process. Records must be retained by the employer of both checks.
The Home Office has confirmed it will not take any enforcement action against employers that conduct an adjusted check and follow this up with the retrospective check.
Retrospective checks will not be needed for individuals who have already been checked in the full and prescribed manner.
Beyond these temporary changes, employers must continue to meet their duties under the Right to Work regime.
Right to Work checks: employer guidance
The Right to Work provisions are set out under Sections 15 – 25 of the Immigration, Asylum and Nationality Act 2006 which came into force on 29 February 2008.
The Home Office guidance sets out employers’ duties in three key steps:
- Step 1 – Obtain: We advise that a copy of a future employee’s right to work is taken before they starts working for you. This is also a preventive measure in case at interview stage a candidate you really wish to hire requires a permit to work here. You will ensure that you put the wheels in motion in good time in case you require to secure a CoS and Tier 2 for your future hire. Look at your recruitment process and find where right to work naturally fits in for you / your organisation, however keep in mind that leaving it for induction day could be too late.
- Step 2 – Check: Check the documents in the employees’ presence. Ensure that the photo in the bio page is the same as the person in front of you. You also want to feel the documents, so make sure you do so. Look carefully and ensure that all pages of the passport are there. Tilt the document and check the lighting on the holograms and MRZ.
- Step 3 – Retain: Retain copies and record the date of the check. Depending on the individual’s immigration status at the time of the check, there will be different demands on the type of documents to tbe checked and retained.
Right to Work checks ordinarily form part of the onboarding process, requiring HR and line managers to be trained to perform the checks adequately. It is good risk management practice to ensure any processes you have in place remain compliant and implemented consistently and correctly.
Failure to perform Right to Work checks correctly could result in unwanted Home Office scrutiny and serious ramifications, including:
- Civil penalty for illegal working – fine for up to £20,000 per breach
- Criminal prosecution
- Enforced debt action
- County Court judgment
- Tier 2 Sponsor Licence revocation
- Adverse impact on the ability to obtain future credit
- Disqualification of company directors
- Inclusion on the Home Office’s civil penalty offender list
- Bad press, reputational harm and a resulting hit on profits
- Business forced to cease trading
By carrying out Right to Work document checks correctly employers should be able to rely on a statutory defence against alleged breaches of duties, 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.
What documents you need to retain for List A, List B Group 1 and Group 2?
The evidentiary requirement on the individual is to provide documents from the Home Office’s prescribed lists – List A or List B.
List A – British Citizens
- For employees who are UK passport holders, you must 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 must 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 full birth certificate or adoption certificate, or certificate or registration or naturalisation as a British citizen
What 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.
List A – European Nationals
- Valid national passport or identity card; or
- Registration certificate of document indicating permanent residence issued to an EEA national; or
- Permanent residence card issued to a family member of an EEA national
European passports, ID cards and permits are varied and sometimes it is difficult to determine what constitutes a genuine one, particularly as their look, shape and feel changes over the years. If in doubt, make use of Prado, the Council of Europe’s public register with examples of past and present European passports and other identification documents and residence permits.
List A – Others
- Holders of Indefinite Leave to Remain in possession of a Biometric Residence Card (BRP) that clearly states so, or with an endorsement in their passport which clearly shows there is no time limit on their stay in the UK; and
- Document showing NI Number and name
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 must stay on top this. Diarising regular checks for List B employees for example
List B – Group 1
- Are those employees (limited time to live and work in the UK) where repeat checks must take place on expiry of their leave. In order to constitute a valid Right to Work check and ensure a statutory defence for your organisation, you must 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 must also hold a copy of a document showing NI number and name.
List B – Group 2
- Are those visa holder employees (limited time to live and work in the UK) where repeat checks must take place every six months.
- Alongside the usual documents, employers must 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.
Employer Checking Service
The Employer Checking Service is a free online service from the Home Office designed to enable employers to meet their duty to conduct Right to Work checks on employees.
Employers can now use the online checking service as the single method of verifying an employee’s permission to work where the individual has:
- A biometric residence permit or
- Biometric residence card or
- Pre-settled or settled status under the EU Settlement Scheme
If an online check is not possible, the employer should continue to perform manual document checks.
The worker also has to give their permission for the employer to view their details.
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 checks and avoiding Home Office penalties, including the practical implications of the coronavirus adjusted Right to Work checks, contact us.
Right to Work check FAQs
How long does Right to Work check take?
Right to Work checks can vary by employer, but would usually take between 5 and 20 working days. During the COVID-19 outbreak, some employers have been hiring workers and verifying their ID on the same day, while others have sped up processing to a matter of days.
What can you use as proof of right to work?
The proof of ID will depend on which of the Home Office lists you come under, whether List A or List B.
What is a Right to Work Share code?
The share code is given to an individual to pass on to their prospective employer to conduct an online Right to Work check using the Home Office employer checking service.