UK employers must carry out Right to Work checks on all employees or face significant Home Office penalties. We provide a range of training and consultancy services to enable employers to comply with their legal obligations.
The law requires all companies to check and retain evidence of each employee’s legal right to work in the UK.
UK companies found to be employing an individual who does not have permission to work in the UK can be issued a substantial fine per breach, among other punitive measures.
Even where companies recognise their duties under the Right to Work legislation, and operate with policies and processes to comply, there are many practical issues that can give rise to a breach and result in enforcement action against the employer.
For example, it can be challenging to achieve consistency in implementing Right to Work processes across an organisation with multiple sites and a large and changing workforce. The guidelines are also extensive and hard to interpret, and UKVI frequently change the legislation making it difficult to stay up to date with the latest requirements.
DavidsonMorris’ UK immigration specialists are on hand to support with all aspects of immigration compliance, including Right to Work checks.
For help and advice on meeting your Right to Work duties, please contact us.
There are various ways in which an employer can conduct a right to work check to ensure that an employee is not disqualified from undertaking work in the UK, or from doing the work on offer, by reason of their immigration status. However, when it comes to different types of right to work checks, much will depend on the employee’s nationality and the nature of any immigration permission held by that person.
The different types of right to work checks are as follows:
By conducting a right to work check, and by doing so in the correct way, this will provide an employer with a statutory excuse against any civil liability. This means that if an employer is found to be employing someone illegally, but they have conducted a prescribed right to work check as required under the rules, they will establish an excuse against any liability for a civil penalty.
By failing to conduct right to work checks, the employer will potentially expose themselves to fines of up to £45,000 per illegal worker for a first breach, and up to £60,000 for repeat breaches.
An identity service provider right to work check is a new form of prescribed check using the services of an Identity Service Provider (IDSP). This is where the employer instructs a certified IDSP to digitally verify a worker’s identity using Identity Document Validation Technology (IDVT), in this way delegating elements of the checking process to IDSPs.
When conducting an IDVT check, the IDSP must take all reasonable steps to check the validity of the document as provided by the prospective employee and to verify that this person is the rightful holder of that document. Certain information must also be captured, including an image of the identity document’s biometric page, including the employee’s personal details, their photo and the date of expiry of the document in question. The IDSP must record the data in a clear and legible format that cannot be manually altered, together with the date on which the identity check was conducted on the employer’s behalf.
As responsibility for the right to work check under the illegal working regime still rests with the employer, a copy of the IDVT check from the IDSP must be obtained, together with the document checked, so that the employer can satisfy themselves to a reasonable belief that their chosen provider has completed the check in the prescribed manner. The employer must also be satisfied that the biographic details and photo on the IDVT check match the person presenting themselves for work. The employer should securely retain this data, either in electronic format or hard copy, for the duration of employment, plus 2 years.
Importantly, the services of an IDSP can only be used to conduct digital identity checks for employees with a valid British or Irish passport, or an Irish passport card. This is because British and Irish nationals are not in scope to obtain a share code using the online right to work check, where a manual check of their passport would otherwise need to be made. If a prospective employee is relying on an expired passport to prove their right to work in the UK, an IDVT check will not be valid. In these circumstances, the employer would need to carry out a manual check of the employee’s document in the prescribed manner instead.
An online right to work check using a share code is a free Home Office service, referred to as the Right to Work Checking Service, that will enable a prospective employee to provide their new employer with an alphanumerical code to verify that they have the right to undertake work in the UK. To obtain a share code, the employee must visit the ‘Prove your right to work to an employer’ section of the GOV.UK online Right to Work Checking Service.
Having been given a valid share code, the employer can access and view the employee’s right to work record by inputting this code, along with the employee’s date of birth, using the employer’s section of the service at ‘View a job applicant’s right to work details’. The information is provided in real time, and will show the employer the type of work that an employee is permitted to do and for how long they can work, where there is a time limit.
Once the employer has access to the employee’s right to work record, the employer will need to check that the online photograph matches the individual in question. The employer must also securely retain an electronic or hard copy of the response from the online service for as long as that person is employed by them, plus an additional 2 years.
The online right to work check using a share code is now available to most migrant workers. This includes EEA and Swiss employees with valid immigration status under the EU Settlement Scheme (EUSS), as well as employees with either a biometric residence card or biometric residence permit, or a frontier worker permit. Increasingly, the Home Office is also issuing overseas nationals with eVisas, rather than physical documents, as proof of immigration status. However, a migrant worker does not have to provide an employer with a share code and should not be penalised if they fail to do so, provided a manual right to work check is possible. In some instances, where an employee’s immigration status is held solely in digital format, a manual check will no longer be possible.
An in-person manual document right to work check involves the prospective employee being asked by their employer to provide certain original documents from List A or B of acceptable documents found at GOV.UK. List A documents show a permanent right to undertake work in the UK, whilst List B documents show a time-limited right of work.
Having been provided with the document(s), and with the person present, the employer must be satisfied that the employee is the rightful holder, the employee’s right to undertake work in the UK has not expired, they are permitted to do the work on offer and the document(s) appear genuine. The employer must also make and retain clear copies in a format that cannot be altered manually. They must record the date of the check and safely store this evidence for 2 years after the employee has stopped working for them.
A manual document-based check can be used for any employee whose immigration status cannot be checked online using a share code, or where the prospective employee has failed to provide the employer with a share code and a manual check is available to them.
Importantly, it is no longer possible to conduct remote right to work checks using the temporary adjusted procedure introduced during the COVID-19 pandemic. This allowed an employer to check the validity of any document(s) in the presence of the employee via live video link, but this temporary process ended on 30 September 2022.
The employer checking service right to work check is where an employee has made an in-time application for further leave to stay in the UK, but a decision is yet to be made on their application. The employee’s right to work will continue pending any decision, or determination of any review or appeal, although the employer will not be able to conduct an online or manual right to work check. The employer will instead need to obtain a positive verification notice (PVN) using the Employer Checking Service (ECS).
To request an PVN from the ECS, the employer will need to submit details of their business, the employee’s personal details and job title, together with the case ID or Home Office reference number linked to the employee’s application. Provided that application was made prior to expiry of the employee’s previous grant of leave, the employer should be sent a PVN confirming that individual’s right to undertake work in the UK. As with all other types of right to work checks, the employer must retain a copy of this for their records.
In these circumstances, the employer will need to delay the employee’s start date until they are in receipt of confirmation of that person’s right to work by way of a PVN from the ECS.
Right to work checks must not only be undertaken on all prospective employees, but on any existing employees whose permission to work in the UK is time-limited. For example, those individuals with permission under one of the many work routes, where they have not yet applied to settle in the UK, will have limited leave to remain. This means that the employer must conduct a follow-up check shortly prior to expiry of the employee’s existing grant of leave to be able to retain their statutory excuse and avoid any liability to a civil penalty.
Equally, a follow-up check must be carried out where the employer has obtained a PVN from the ECS. This is because a PVN appears on List B (Group 2) of acceptable documents, where a time-limited statutory excuse will last for 6 months. In contrast, for List B (Group 1) documents, a statutory excuse will last until the expiry date of the grant of leave.
For existing employees applying to extend their leave to stay in the UK, they should be able to continue working for their current employer pending any decision on their application, again provided that application was submitted prior to expiry of their previous leave. In these circumstances, the employer’s statutory excuse against civil liability will last for 28 days from the expiry of the employee’s permission, in this way enabling the employer to obtain a PVN. Importantly, this 28-day grace period will not apply to any checks carried out before employment commences, where the employer must delay employing the individual in question until such time as they receive a 6-month PVN from the ECS.
Once an employee’s permission to work in the UK has expired, unless that person has applied for further leave, it will be illegal to continue employing them. In these circumstances, an employer may not only be liable to a civil penalty, they may also be liable to criminal prosecution. The offence of employing a migrant worker that the employer knows or has reasonable cause to believe no longer has permission to work in the UK is punishable by up to 5 years imprisonment, an unlimited fine, or both.
Illegally employing migrant workers can also lead to the loss of the employer’s sponsor licence, including the loss of any overseas nationals with a legitimate right to work in the UK, together with seizure of earnings made as a result of illegal working, serious damage to the employer’s business reputation and employer-brand, and disqualification as a director.
The Immigration, Asylum and Nationality Act 2006 requires all companies to check and retain evidence of each employee’s legal right to work in the UK.
Section 8 provides that all companies must check and retain relevant documentation in a prescribed format that demonstrates that an employee has the legal right to work in the United Kingdom.
Section 22 determines that the checks must be made in a non-discriminatory manner. All employees must be checked regardless of nationality, length of service and role within the company.
Your HR processes and policies should be shaped around meeting the Home Office guidance of verifying each employee’s right to work by obtaining, checking and recording relevant acceptable types of documentation.
At the pre-employment stage, you should be asking all potential new employees to bring along their original passport or identity document. If the recruit is a British citizen and does not have a passport, you must request to see the original birth certificate (long version) and P45, or other evidence of registration with HMRC.
A copy of the document must then be retained for the duration of the employment.
You then have to determine whether an employee should be categorised as a List A employee or List B employee, as this will dictate the forms of ‘acceptable’ documentation that must be presented to you by the individual.
List A workers include employees who are either British citizens or those with UK settled status or Indefinite Leave to Remain.
If an individual does not fall within any of the List A categories, they are instead subject to immigration control and will be classed as a List B worker.
The requirement is for companies to further split their List B employees into Group 1 and Group 2.
An example of this is the case of an employee working for an organisation who is married to a British citizen and has a Dependant Spouse Visa valid for 2.5 years: that employee now has to be classified as List B Group 1.
As soon as the worker has submitted their application for an extension, an employer is now legally required to re-classify the employee into List B Group 2 and must check as per the UKVI guidelines until their application has been approved. Once approved and the worker has their visa extension, the employer must put them back into List B Group 1.
An example of a List B Group 2 is a student who has submitted an application to the Home Office for an extension to their visa, the application is pending consideration and until it’s been approved, the company is legally obliged to classify the employee as List B Group 2 and conduct checks as per UKVI guidelines.
Among the record keeping duties, you must also keep a copy of the Right to Work check for at least 2 years after an employee leaves.
List B workers with time-limited permission to work must be subject to repeat checks and where an employee loses the right to work, the employer should take advice to avoid falling foul of employment law issues.
In addition, all personnel – including non-HR – involved in recruiting and onboarding new recruits, such as line and site managers, should be trained on their Right to Work duties and processes, in line with the prevailing regulations.
Right to Work compliance is an ongoing demand. The Home Office is looking for continued monitoring of HR processes and consistent and competent implementation to ensure ongoing compliance.
For help and advice on meeting your Right to Work duties, please contact us.
DavidsonMorris specialises in supporting UK employers with their Right to Work compliance.
As a team of immigration lawyers and former Home Office employees, we provide the guidance and assurance to help you meet your duties on an ongoing basis through legal, analytical and information technology-assisted techniques.
We support organisations across the UK with our Right to Work consultancy services, including:
Right to work checks are online or manual employee checks conducted by an employer to help prevent illegal working, ensuring that anyone they employ has the right to undertake work in the UK and to do the work on offer.
All UK employers are required to conduct prescribed right to work checks on any new employee before they start working for them, in this way helping to prevent those without lawful immigration status from undertaking work illegally in the UK.
The three steps to carrying out right to work document checks are asking the employee to provide original documents from List A or B of acceptable documents, checking these are valid with the employee present, and making and retaining copies.
There are different types of right to work checks, involving different steps, where some will take longer. For example, an online check using a share code will taker a matter of minutes, whilst a manual document check can take longer.