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Right to Work Checks (Employer Guidance)

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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 checks on every UK-based employee to verify they have the requisite permission to perform the work on offer.

Importantly, as part of your recruitment, pre-employment checks, 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.

By carrying out Right to Work document checks in the correct manner, employers should be able to rely on a statutory defence against allegations of compliance breaches, 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.

Recent changes to the government guidance on Right to Work checks mean there are now a number of ways open to employers to conduct compliant document checks:

 

Since 1 October 2022, employers now either have to conduct their Right to Work checks in person or implement suitable, compliant processes through an IDSP (Identity Service Provider). The type of check you can conduct will depend on a number of factors, such as the nationality of the worker. The employer cannot, however, dictate how an individual proves their eligibility to work.

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.

In this Right to Work guidance for employers, we explain the different types of Right to Work checks and the circumstances when you can – and cannot – use these. We also explain the Right to Work documents that should be provided by your employees.

The Right to Work provisions are set out under Sections 15 – 25 of the Immigration, Asylum and Nationality Act 2006, supported by Home Office guidance which is regularly updated. Employers are under a duty to stay informed and meet their obligations under the relevant latest guidance.

 

1. Manual Right to Work Checks

‘Manual’ checks refer to meeting the individual face to face and checking a physical copy of their acceptable documentation. If an online check is not possible, the employer should continue to perform manual document checks. The Home Office guidance sets out three steps to conducting a compliant manual Right to Work check.

 

Right to Work Step 1 – Obtain

The first step to conducting a check is  to 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, unless using the Home Office’s online checking service (see below). You should also check the documents in the employee’s presence.

We advise that a copy of a future employee’s Right to Work document 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 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.

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.

As we discuss below, the COVID concession for manual document checks ended on 30 September 2022.

 

Acceptable documents for manual checks

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 into 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 

  • 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 should use the online service (see below).

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 Step 2 – Check

The documents provided must then be checked by the employer.

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.

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 use the Employer Checking Service to request a ‘Positive Verification Notice’ to confirm that the applicant has the right to work, as we discuss below.  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.

 

2. Digital Right to Work Checks

Employers can use Identity Document Validation Technology (IDVT) through the use of IDSP for checks on British and Irish citizens that are beyond the scope of the Home Office online service.

IDSPs conduct remote digital identity checks on the individual and their documentation on behalf of the employer.

Employers can only rely on the statutory excuse against a civil penalty if they follow the guidance on digital Right to Work checks. It is the employer’s responsibility to obtain the IDVT check from the IDSP. It is recommended by the Home Office that checks are ‘Medium Level of Confidence’ as a minimum standard.

 

Right to Work Step 1 – Check

The employer must then carry out and record a visual check on the individual when they first present themselves for work. This involves being satisfied that the person in front of you is consistent with the photograph and IDVT check results. For example, that the date of birth is plausible.

Digital checks should not be made mandatory for individuals. Employers cannot discriminate against, or treat less favourably, individuals without a passport or individuals who do not want to make use of digital checks. Employers should instead allow the individual to prove their Right to Work through a manual document check.

Digital checks using IDSPs are currently only available to holders of valid British or Irish passports, or Irish passport cards.

 

Right to Work Step 2 – Retain

Copies of the IDVT check output should be retained for the length of the individual’s employment and for two years after the employment has been terminated.

 

3. Online Right to Work Checks

Employers are able to use the online checking service and employee share codes 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 or
  • Frontier worker permit

 

Since 6 April 2022, BRC, BRP and FWP holders are only allowed to prove their eligibility to work through the Home Office online service. Employers can no longer accept physical BRPs, BRCs or FWPs as evidence of the right to work. This applies even where such a document states a later expiry date. The changes do not apply retrospectively to BRC or BRP holders employed up to and including 5 April 2022, rather the previous requirements on document checks will continue to apply for the employer to discharge their duty under the prevention of illegal working regime.

The online service can be found on the Home Office website, entitled ‘View a job applicant’s right to work details’. 

The individual has to give their permission for the employer to conduct the online check. If the worker agrees, they will need to obtain a unique 9-character long ‘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.

The employer then completes the online Right to Work check by entering the individual’s details on the ‘checker’ section of the Home Office right to work website. You will only be able to rely on the statutory excuse by accessing the ‘View a job applicant’s right to work details’ section; it is not enough to view the individual’s details on the migrant section.

The share code for Right to Work checks begin with the letter ‘W’. Share codes starting with ‘S’ or ‘R’ are not acceptable for eligibility to work checks.

 

Right to Work Step 1 – Check

Online checks can be conducted via video call and you do not need to see the physical documents as the information is accessed directly from the Home Office.

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.

 

Right to Work Step 2 – Retain

The employer has to keep a copy of the Right to Work check in the form of the ‘profile’ page that verifies the individual’s eligibility to work.This can be saved as a PDF or HTML file, or printed out. The copy of this page should be retained – electronically or in hardcopy – for the length of employment and for two years after employment is ended.

 

4. Employer Checking Service

The Employer Checking Service (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.

The ECS should also be used by employers to ask the Home Office to check an individual’s immigration status if they have an Application Registration Card or a digital or non-digital Certificate of Application that says you need to ask the Home Office to check their Right to Work.

You only need to use this service if you cannot check the applicant’s right to work online using their share code or check the applicant’s original documents.

 

End of COVID-adjusted Right to Work check scheme

The COVID-adjusted Right to Work scheme ends on 30 September 2022.

The Home Office introduced the scheme in March 2020 as a temporary measure to allow employers to conduct document checks remotely in light of the pandemic lockdown restrictions.

COVID-adjusted checks had initially been slated to end in May 2021, but the end of the scheme was delayed on several occasions by the Home Office until 30 September 2022.

While the scheme was open, employers were permitted to conduct document checks remotely via video calls, with applicants submitting their documentation electronically rather than in original format. Scanned or digital copies of original right to work documents were able to be checked on a live video link with the individual as part of a compliant check.

All checks made under the temporary scheme must 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 had to 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 were not required to carry out full or ‘corrected’ checks retrospectively where a COVID-adjusted check had been used during the scheme.

Allegations of illegal working could be defended if the employer could 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 30 September 2022 inclusive). However, individuals found to have been working illegally, and their employers, could still be subject to enforcement action.

From 1 October 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. From 1 July 2021, all new EU, EEA and Swiss employees must show they hold valid pre-settled status, settled status or a valid visa to prove their Right to Work.

It is not necessary to carry out retrospective Right to Work checks on existing EU employees after 30 June 2021, provided compliant checks were made on or before 30 June 2021 where the EEA nationals presented their valid ID or passport.

Under Home Office guidance issued on 31 August 2021, those awaiting a decision on an EUSS application will continue to have their UK residence and working rights protected while their application is pending.

It is also acceptable for EUSS applicants to rely on a ‘Certificate of Application’ issued on or after 1 July 1 2021, along with a Positive Verification Notice through the Employer Checking Service, as proof of right to work.

 

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 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 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 check after change of sponsored role

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.

 

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

 

Need assistance?

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

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.

And 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.

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

What are right to work checks?

Right to work checks refer to the process of employers verifying individuals’ eligibility to work in the UK and to carry out the work in question, in compliance with Home Office obligations.

Are right to work checks mandatory?

Employers are required by law to conduct compliant Right to Work checks to discharge their duty and be able to rely on a statutory excuse in the event of alleged breaches.

What are the three steps of a right to work document check?

Home Office guidance states a compliant manual Right to Work comprises three stages: step 1: obtain the documentation; step 2: check the documentation; step 3: retain a copy of the check. Online or digital checks require the employer to check the relevant document or information online and retain a record of the check.

Last updated: 9 December 2022

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