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. Right to Work checks are required to verify that any individual you employ has the requisite permissions to work in the UK. Performing Right to Work checks correctly provides defence in the event of an issue with the immigration or working status of any of your employees.
Importantly, the checks must be carried out indiscriminately and without assumption on all prospective employees and employees, regardless of nationality, race or ethnicity – including British, EEA. Singling out certain classes of individual could equate to discrimination.
It is illegal to breach your duty to prevent illegal working.
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
Summary of Right to Work checks
It is good risk management practice to ensure any processes you have in place remain compliant and implemented consistently and correctly.
Right to Work checks ordinarily form part of the onboarding process, requiring HR and line managers to be trained to perform the checks adequately.
All provisions are under Sections 15 – 25 of the Immigration, Asylum and Nationality Act 2006 which came into force on 29 February 2008. The Home Office has published guidance for employers.
- 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 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.
What do you need to retain for List A, List B Group 1 and Group 2?
List A – British Citizens
- For employees who are UK passport holders, you must copy and retain the details page of their passport as prove of lawful right to work in the UK. 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 dates 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.
Right to Work
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, contact us.