Right to Work Checks

From a business immigration perspective - this is what UK employers need to know:

The ever-evolving Home Office guidance on the right to work checks has made this a hot topic for all UK based employers.

All employers in the UK must be aware that they have a legal obligation to comply with the prevention of illegal working. It is important to conduct the right to work checks in the correct manner and comply with the laws and regulations as it offers employers a defence in relation to the immigration status of any of their employees.

Prior to employing any individual the employer should conduct a right to work check to ensure the individual is legally allowed to do the work in question for the employer.

If an individual’s right to work is time limited (meaning they have a visa which has an expiry date), the employer should conduct a follow-up check shortly before the visa is due to come to an end.

An employer will be awarded a statutory excuse as a defence against a civil penalty, if the right to work checks have been carried out correctly. In order to establish a statutory excuse against a civil penalty in the event that an employee is found to be working illegally, employers must do one of the following before the employee commences employment:

1. A manual right to work check

2. A Home Office online right to work check

3. A right to work check using Identity Verification Technology (IDVT) via the services of an Identity Service Provider (IDSP)

If the employer conducts any of the above checks as set out in this guidance and in the code of practice, this will provide the employers with a statutory excuse.

1. How to conduct a manual right to work check?

Employers will need to complete a three-step process before their employee commences work:

Step 1: Obtain

Obtain original documents from either List A or List B. Please see both lists from Appendix A of the Home Office guidance below

List A: Group 1 

• A passport (current or expired) showing the holder is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK
•  A passport or passport card
• A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted unlimited leave to enter or remain under Appendix EU(J) to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules
• 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
• 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
• A birth or adoption certificate issued 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
• 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
• 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 2 

• A document issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules (known as the EU Settlement Scheme) on or before 30 June 2021 together with a Positive Verification Notice from the Home Office Employer Checking Service
• A Certificate of Application (digital or non-digital) issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules (known as the EU Settlement Scheme), on or after 1 July 2021, together with a Positive Verification Notice from the Home Office Employer Checking Service
• A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man showing that the holder has made an application for leave to enter or remain under Appendix EU(J) to the Jersey Immigration Rules or Appendix EU to the Immigration Rules (Bailiwick of Guernsey) Rules 2008, or Appendix EU to the Isle of Man Immigration Rules together with a Positive Verification Notice from the Home Office Employer Checking Service
• 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

Step 2: Check

Check the documents are genuine and belong to the prospective or existing employee.

The employer must check that the following information:

1. Photographs and date of birth are consistent

2. Visa expiry dates for prospective or existing employees

3. Any work restrictions to determine if they are allowed to do the type of work the employer is offering

4. For those employers employing students, you must also obtain, copy, and retain their academic term timetable and vacation dates. This must cover the duration of their studies in the UK.

5. Ensure the documents have not been tampered with and are genuine

6. If the prospective of existing employee has a different name obtain, copy, and retain (the deed poll, marriage certificate, decree absolute)

Step 3: Copy

It is vital to keep records for right to work compliance purposes. The employer will need to make clear copies of the original documents and retain the copies either electronically or in hard copy format and record the date the check was carried out.

Recording the date the check was carried out can be done either by making a dated declaration on the copy or holding a separate record. Employers should be able to produce these document copies quickly in the event that they are requested to show them to demonstrate that a right to work check has been performed and in order to retain a statutory excuse.

If the employer opts for retaining electronic copies of the original documents, this must be a scanned copy in a format which cannot be altered (PDF document or a Jpeg).

All documents except passports must be copied in full. When copying information in the passports, employers must only copy the following any page with the document expiry date, the holder’s nationality, date of birth, signature, immigration permission, expiry date, biometric details, photograph, and any page containing information indicating the holder has an entitlement to enter or remain in the UK (visa or entry stamp), and undertake the work in question (the front cover no longer has to be copied).

Employers are required to retain the copies for the duration of the individual’s employment with them, plus a further two years after the employee leaves their employment.

2. How to conduct a Home Office online right to work check?

The employer can conduct an online check by using the Employer Checking Service. This is a free online service to verify a prospective or existing employee's permission to work. The online checking service only works for those who hold the following:

• Settled Status or Pre-Settled Status
• A Biometric Residence Permit (BRP card)
• A Biometric Residence Permit
• Frontier Worker Permit Holders or those issue with eVisas

The employer cannot simply perform the online right to work check without the workers permission. The employer will need to obtain a Unique Share code and the employee's date of birth.

The employer must then 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. The employer should download and save a copy of the online checks PDF document and record the time and date of the right to work check being carried out.

3. A right to work check using Identity Verification Technology (IDVT) via the services of an Identity Service Provider (IDSP); Changes coming in to effect on 1 October 2022:

The Home Office have announced that after 30 September 2022 the requirements will change for British/Irish nationals right to work checks. From 1 October 2022 the right to work checks can be completed one of two ways:

• In person - meeting with the employee and ensuring that the documents they are presenting are original, untampered with, and belong to them. Employers should then take a signed and dated copy of the document/s and retain these securely
• Online - by appointing an Identification Service Provider (“IDSP”). The IDSP will then use Identification Document Verification Technology (“IDVT”) to check the passport of the British & Irish national on behalf of employers

Employers must us follow List A of the guidance to obtain original documents from the prospective British or Irish employee.

What is the Identity Service provider (IDSP)?

The Identity Document Validation Technology (IDVT) was introduced on 6 April 2022 via the services of IDSP to complete online right to work checks for British and Irish citizens who hold a valid passport.

Once the employer has obtained the check from the IDVT provider they must obtain and retain the copy of the IDVT check/report along with the copy of the document that was used to perform the check.

Who to conduct right to work checks on?

Employers must ask all prospective employees to demonstrate their right to work. Employers should not discriminate anyone when conducting right to work checks. If an employer discriminates when conducting right to work checks they may be discriminating against the prospective employee. This could be used as evidence against the employer in proceedings under the Equality Act 2010.

What happens if employers do not comply with their sponsor duties?

If the employer fails to perform the correct right to work checks, they may face a penalty including; the following:

• A civil penalty of up to £20,000 per illegal worker
• In serious cases, a criminal conviction carrying a prison sentence of up to five years and an unlimited fine
• Closure of the business and a compliance order issued by the court
• Disqualification as a director
• Not being able to sponsor migrants
• Seizure of earnings made as a result of illegal working, and
• Review and possible revocation of a licence in the alcohol and late-night refreshment sector and the private hire vehicle and taxi sector

Employers: How to prepare for a Home Office Audit:

• Offer training to your employees conducting the right to work checks
• Conduct mock audits on all right to work checks carried out - see that they have been recorded correctly

How can Biscoes assist?

At Biscoes, we have a robust track record of advising on all aspects of immigration. We provide a friendly service with a practical approach and offer expert advice in relation to business immigration matters. Please feel free to contact us on the details below: