Right to Work Documents

Right to Work Documents: Guidance for Employers 

UK employers operate under a legal responsibility to prevent illegal working, centred largely on duties to check, verify and record employees’ Right to Work documents.

The Immigration, Asylum and Nationality Act 2006 requires all employers to conduct basic document checks on every individual they intend to employ.

By carrying out right to work document checks, 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 a right to work in the UK.

Employers found to be employing an illegal worker may be subject to a fine of up to £20,000 per breach under the Home Office civil penalty regime, among other ramifications – including criminal sanctions.

Employer duties

Right to work checks would ordinarily be carried out as part of your recruitment or onboarding process, and certainly prior to the first day of employment. They must be completed for every new employee, irrespective of nationality, race or ethnicity. Failure to apply the process to all employees may result in allegations of discrimination.

The evidentiary requirement on the individual is to provide documents from the Home Office’s prescribed lists – List A or List B.

Crucially, you should only accept original documents.

You should have protocol in place to deal with situations where individuals cannot provide documents as required. For example, should this mean the offer of employment has to be withdrawn, or are there alternative, permitted methods of verification, such as seeking a Positive Verification Notice?

Again, issues of discrimination are at play here, so it is safest to take professional advice to ensure you are operating in line with Home Office requirements.

When presented with the documents, you are required to check their validity with the individual present. You should be satisfied that the documents are genuine, original and unchanged and belong to the person who has given them to you.

Also check that the dates for right to work in the UK haven’t expired, that the photos are the same across all documents and look like the individual, that the dates of birth are the same across all documents and the individual has permission to do the type of work you’re offering (including any limit on the number of hours they can work).

This is likely to result in a training requirement for those carrying out the checks, typically HR and line and/or site managers.

You will then be required to take a photocopy of the relevant parts of the documents, which must then be certified, signed and dated by the manager checking the document.

Which Right to Work Documents are Acceptable? 

The Home Office separates the types of acceptable documents into two types – List A and List B documents. Only documents included on these lists are acceptable; no other documents will be accepted.

  • List A – where an individual has a permanent right to work in the UK. No further right to work checks will be required during their employment with you.
  • List B – where individuals have a temporary right to work in the UK. Repeat checks will be required to ensure continued permission to work, until a document from List A is produced.

List A

The individual must present one of the single documents, or two of the documents in the specified combination given, 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 Group 1

The individual is to present one of the single documents, or two of the documents in the specified combination given, from List B:

  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.
  4. 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.

List B – ongoing checks  

Where an individual presents documents from List A, no further document checks will be required during the course of their employment with your organisation.

Repeat checks are however required if the individual has presented documents from List B, ie where there is a time limitation or restriction on their right to work. Document checks must be carried out every 12 months (at least) take place or on expiry of the individual’s visa, whichever is sooner.

Where the employee presents a document from List A during a repeat check, then no further checks will be required during the course of their employment.

Record keeping

After the List A or B documents have been verified and checked, the certified copies must be retained securely for the duration of the individual’s employment, and then for two years after they have stopped working for the company.

Loss of Right to Work

If during a repeat check you become aware that an employee no longer has the right to work, or that they are in breach or excess of their permission by being employed by you (e.g. number of working hours) and you continue to employ that person, you become liable for a civil penalty and the criminal offence of knowingly employing an illegal worker.

It is best to seek advice as soon as you become aware of an employee’s loss of permission before taking action. Instant dismissal of an employee who no longer has the right to work can in some cases give rise to employment law issues, such as unfair dismissal or discrimination claims, which will require navigation.

Take advice on the circumstances to ensure you remain compliant with your duties.

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 checks and avoiding Home Office penalties, contact us.

By |2018-03-04T21:12:20+00:00March 2nd, 2018|Comments Off on Right to Work Documents