Right to Work Checks: Guidance for Employers
As a UK employer, you have a legal obligation to comply with the prevention of illegal working legislation.
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. In this Right to Work guidance, we explain how to conduct employer Right to Work checks, and the Right to Work documents that should be provided by your employees.
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 lead to complaints of unlawful discrimination.
COVID-adjusted Right to Work check scheme
The Home Office introduced the COVID-adjusted Right to Work scheme in March 2020 as a temporary measure in light of the pandemic lockdown restrictions, to allow employers to conduct document checks remotely. The scheme is now due to close on 5 April 2022.
Under the scheme, scanned or digital copies of original right to work documents can be checked while on a live video link with the individual as part of a compliant right to work check.
Employers should ensure that any checks made under the temporary scheme have been clearly marked with the following words, as prescribed by the Home Office: “adjusted check undertaken on [insert date] due to COVID-19”.
Those that required 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.”
Employers may be able to defend allegations of illegal working if they can show they conducted document checks in line with the full prescribed manner or the COVID-adjusted rules during the period of the scheme’s validity (between 30 March 2020 and 5 April 2022 inclusive). Individuals who are found to be working illegally, and their employers, may be subject to enforcement action.
The Home Office has also confirmed that employers will not be required to carry out full or ‘corrected’ checks retrospectively where a COVID-adjusted check had been used between 30 March 2020 and 5 April 2022 inclusive.
COVID-adjusted checks had initially been slated to end in May 2021, but this was delayed by the Home Office until 21 June 2021. In response to delays in easing lockdown measures, the Home Office further extended the end of the allowance until 31 August 2021, but following pressure from employers and industry bodies, the concession has been extended again until 5 April 2022 inclusive.
This means from 6 April 2022, relying on scanned or digital copies of original documents, or viewing the documents via video link, will no longer be acceptable or provide a defence against enforcement action.
Right to Work checks & EU workers
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.
Up until 30 June 2021, EU workers could continue to use a valid passport or National Identity Card to prove their eligibility to work. This means employers can rely on compliant checks made on or before 30 June 2021 where EEA nationals presented their valid ID or passport. Retrospective checks are not required.
EU workers hired after 1 July 2021
For EEA nationals employed after 1 July 2021, the employer must conduct the appropriate document checks. This requires the employer to see an individual’s status under the EU Settlement Scheme or proof of an appropriate work-based visa under the points-based system. Transitional Right to Work measures do not apply to EU workers hired from 1 July 2021.
Where a right to work check confirms that there is a time limit on the EU employee’s right to work in the UK, a follow-up check should be carried out prior to the expiry date. This could be, for example, where they only have pre-settled status under the EU Settlement Scheme or they have been granted limited leave to remain under the points-based system.
Existing EU workers without settled status
The EU settlement scheme closed on 30 June 2021 to new applications, however, the Home Office introduced a 28-day grace period to allow EEA nationals and their family members who missed the deadline to apply.
If after 30 June 2021 it is identified that an EU worker has not applied for EU settled status, for example through a follow-up document check or if the employee informs the employer of the fact, and they are therefore without lawful status in the UK, the employer would not have to terminate the worker’s employment provided:
- they were employed by the organisation prior to 30 June 2021; and
- the employer advises the worker to make their settled status application within the 28-day grace period; and
- the worker then provides their employer with their COA, which the employers uses for the Employer Checking Service; and
- the employer receives a positive verification notice as a result of the ECS check.
If the EU worker is then successful in their application for settled status, they should advise their employer, who can then use the ECS to confirm their working status.
If the worker’s settled status application remains pending after six months, the employer should carry out a follow-up check. If the follow-up check reveals the application has in fact been refused, and the worker has lost the Right to Work, the guidance states the employer should take steps to avoid illegal employment, which would generally require the contract to be terminated. However, dismissing EEA nationals at the point where the employer discovers that their settled status application is refused would be in contradiction of Schedule 4 of the Immigration (Citizens’ Rights Appeals) (EU exit) Regulations 2020, which amend section 3C Immigration Act 1971, to extend leave while an appeal could be brought or is pending under the EUSS.
As such, employers dealing with an EU worker who has had their settled status application refused should contact us for advice to avoid related issues such as discrimination or unfair dismissal, as well as allegations of illegal working.
Right to Work checklist
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. 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.
The Home Office guidance sets out employers’ duties in three key steps:
Right to Work Step 1 – Obtain
Employers can until April 2022 continue to rely on the COVID concession for online checks when conducting a manual document check. Until this date, employers can either conduct online checks by using an electronic or scanned copy of the relevant documentation, to be inspected and verified during a live video link with the individual, or 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 (as was permitted before the pandemic), unless using the Home Office’s online checking service (see below).
We advise that a copy of a future employee’s Right to Work 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 existing employees have limited permission to remain and work, you must ensure a follow-up check is scheduled and conducted before their current period of leave expires.
If an employer is to successfully establish a statutory excuse, they must ensure that the prospective employee presents the original documents in person. Photocopies or electronic copies will not suffice as evidence of their Right to Work.
List A or List B?
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.
The documents to prove the Right to Work are specified by the Home Office under List A and List B. 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 settled status under the EU settlement scheme), while list B is for those whose permission to work is time-limited (eg EEA nationals, and EU nationals coming to the UK after 1 January 2021).
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 a 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 – ILR Holders
- 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 A – European Nationals
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 can opt to use the online service.
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.
The Home Office guidance specifies certain features and characteristics which employers should look for when checking the documents. For example, if an employee has ILR, this must be evidenced with a vignette in a valid passport.
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:
- Ensure any photographs on the documents are the same person in front of you.
- 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.
- When checking passports, check that all pages of the passport are present.
You should also check the documents in the employee’s presence, unless you are relying on a temporary COVID-adjusted check.
Right to Work Step 2 – Check
The documents provided must then be checked by the employer. While employers are not expected to show expert levels of fraud detection, there are certain expectations to discharge their duty under the prevention of illegal working regime.
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. Employs 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.
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 must 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, for example a work visa, and biometric residence permits and cards which should be copied on both sides.
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.
Problems with documents
If there are problems with the individual providing the required proof of eligibility to work, you may need to contact the Home Office to request a ‘Positive Verification Notice’ to confirm that the applicant has the right to work. This would apply where:
- You believe the individual has an application or matter such as an appeal pending with the Home Office.
- The individual is a Commonwealth citizen who has been resident in the UK since before 1988.
- The individual has Application Registration Card.
- The individual has Certificate of Application less than 6 months old.
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 instead of conducting a manual check 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 conduct the online check. If the worker agrees, they will need to obtain a unique ‘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.
If relying on an online check and share code, the employer must see the new employee face to face on their first day to confirm the photo of the person on the online check is the person attending 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 person on their first day.
Employer’s guide to Right to Work checks
Right to Work checks ordinarily form part of the onboarding process and pre-employment checks.
It is good risk management practice to ensure any Right to Work processes you have in place are compliant and implemented consistently and correctly.
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.
Penalties for non-compliance
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
- Sponsor Licence suspension or 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
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.
Last updated: 26 August 2021