Employer Checking Service (Guide for HR)

The Employer Checking Service is a Home Office tool for employers to use in certain circumstances to verify an individual’s right to work.

There are, however, rules and limitations to using the employer checking service, making it important for employers, HR and those responsible for conducting an organisation’s right to work checks to understand how to make use of the service without breaching the prevention of illegal working regulations.

In this practical guide for employers, we explain how to use the employer checking service as part of your immigration compliance procedure.

 

Conducting right to work checks

UK employers operate under a duty to prevent illegal working by carrying out right to work checks on all prospective employees and those workers with time-limited permission to work.

Under the UK’s prevention of illegal working regulations, where an employer is found to have employed someone who, by reason of their immigration status, is prohibited from working in the UK or from undertaking the work in question, they may face a civil penalty fine per breach.

However, where an employer is found to have employed someone who is working illegally, yet they can show they carried out the prescribed right to work checks correctly, they may be able to rely on a statutory excuse to challenge or reduce the fine.

It is critical therefore that all personnel performing right to work checks are aware of what they must do to confirm the right to work of both prospective employees and existing employees whose right to work in the UK is time-limited.

Employers can conduct these right to work checks by:

• Checking the individual’s right to work online, if they’ve given you their share code and they have either:
  • A biometric residence permit or biometric residence card or
  • Settled status under the EU Settlement Scheme.
• Conducting a manual check using the individual’s original documents, such as a British passport.
• Using an identity service provider that offers Identity Document Validation Technology (IDVT).

 

In some circumstances, it may not be possible for the employer to use any of these types of checks, for example, if the individual cannot provide the required documentation or online immigration status to prove their eligibility to work in the UK. In these cases, the employer should use the Employer Checking Service.

 

What is the Employer Checking Service?

The Employer Checking Service (ECS) is one of the ways in which an employer can check if a prospective or existing employee has the lawful right to work in the UK and to do the work on offer. However, there are limited circumstances in which this service can be used.

The Employer Checking Service is a Home Office service available to employers to check the right to work of employees if they cannot show their online immigration status or an acceptable physical document. This could be because, for example, an employee has an outstanding application, appeal or review with the Home Office and is waiting for a decision, or they arrived in the UK prior to 1989 and do not have documentation to be able to prove their immigration status or right to work.

The employer must also use the ECS to check an employee’s status if that person has a either digital or non-digital Certificate of Application (COA) stating that the employer should ask the Home Office to check their right to work, or they have an Application Registration Card (ARC). A COA is the document issued by the Home Office on receipt of an application under the EU Settlement Scheme (EUSS), while an ARC is a card given to individuals by the Home Office to show they have made an asylum claim.

 

What is a positive verification notice from the Employer Checking Service?

If through the ECS the Home Office confirms that the individual has the right to work, a Positive Verification Notice (PVN) will be issued to the employer. The PVN must be retained by the employer as proof of the working status check.

The PVN will also detail any limitations on the individual’s right to work.

Importantly, a PVN will only provide the employer with a time-limited statutory excuse for a period of 6 months. This means that a follow-up check must be conducted when this period is due to expire if the statutory excuse is to be retained. Equally, if any follow-up check reveals that the employee has been granted a time-limited right to remain in the UK, an additional right to work check will be needed on expiry of that grant of leave.

Once an employee’s permission to work in the UK has expired, unless they have applied in time to the Home Office for further leave, it will be illegal to continue to employ them. An employer may not only be liable to a civil penalty in these circumstances, but they also run the risk of criminal prosecution, given that they should be aware at this stage that any time-limited right has run out. The offence of employing someone that an employer knows or has reasonable cause to believe no longer has permission to work in the UK or do the work on offer is punishable by up to 5 years’ imprisonment and/or an unlimited fine.

 

When to use the Employer Checking Service

The employer would not need to request a Home Office check if the individual is a British or Irish national, or has an immigration status that can be checked online or using an immigration document from the Home Office demonstrating a right to work. Employers will only need to use the Employer Checking Service if they are not able to check the individual’s eligibility to work online or through manual document checks.

Circumstances in which the employer would need to contact the ECS to establish a statutory excuse include:

• being presented with a non-digital CoA, or an email or letter, confirming receipt of the employee’s application to the EUSS on or before 30 June 2021
• being presented with a non-digital CoA confirming receipt of the employee’s application to the EUSS on or after 1 July 2021
• being presented with a valid ARC stating that the card-holder is permitted to undertake the work in question, although this will be restricted to employment falling within a shortage occupation
• being satisfied that they have not been provided with any acceptable documents and are unable to carry out a check using the online service
• where the employee presents other information indicating that they have an outstanding application with the Home Office for permission to remain in the UK which was made prior to expiry of their previous permission, or has a pending appeal or administrative review, and therefore cannot provide acceptable evidence of their right to work
•  where the employer considers that they have not been provided with any acceptable documents, but the employee presents other information indicating they are a long-term resident who arrived in the UK before 1989.

 

In any one of these scenarios, the employer will establish a statutory excuse only if they are issued with a Positive Verification Notice (PVN) which confirms that the named person is authorised to work and allowed to carry out the type of work in question.

If an employer is requesting verification from the ECS because an employee has an outstanding application, appeal or administrative review against a Home Office decision, they should wait at least 14 calendar days after the employee’s paperwork has been delivered or posted to the Home Office or court before requesting a check. This is because it takes this amount of time for most cases to be registered with the Home Office.

In these circumstances, any existing right to work in the UK will continue pending a decision by the Home Office, or determination of any review or appeal, provided the employee’s pending application was made before their previous grant of leave expired.

 

Using the Employer Checking Services for follow up right to work checks

The ECS can be used to conduct both initial and follow-up right to work checks where you are unable to perform a manual or digital check.

Follow up right to work checks will be needed where an individual has time-limited permission to work in the UK. This could mean, for example, they have a temporary work visa. Employers should conduct follow-up right to work checks within one month of the employee’s right to work expiring. Employers can also choose to conduct follow-up right to work checks more frequently.

To use the ECS to conduct follow-up right to work checks, employers will need to:

• Create an ECS account, or log into your account if you already have one
• Select the “Follow-up checks” tab.
• Enter the employee’s details
• Submit the form

The Home Office will then check the employee’s immigration status and send you a notification with the results of the check.

The process of conducting the follow-up check using the ECS is relatively straight forward. The risk comes in ensuring that you are aware of which individuals have time-limited permission to work and that the follow up checks are carried out at the appropriate time. To reduce legal risk, it is advisable to plan your checks in advance to avoid any delays in conducting the checks and to ensure that you are complying with the legal requirements, and keep accurate records to prove that you have conducted the checks correctly if you are audited by the Home Office.

 

How to use the Employer Checking Service?

To carry out the ECS check, you must have the individual’s permission.

To request a PVN using the Employer Checking Service, the employer should use the ECS online tool at GOV.UK. From this page they will be signposted to a “Start now” link and asked to complete a number of questions to clarify if a check is needed, including:

• Does the employee or prospective employee hold a passport from the UK or Ireland, or other immigration documents from the Home Office, or an immigration status that can be shared digitally that demonstrate a right to work?
• Does this person already work for the employer?
• Does this person have any one of the following:
  • an ongoing application or an appeal for leave to remain in the UK?
  • an application for no time limit to be added to a new passport by someone with indefinite leave to enter or remain in the UK?
  • an application for transferring a current visa into a new passport / Biometric Residence Permit (BRP) or applying for a replacement BRP?
  • a COA issued following submission of an application under the EUSS?
  • an ARC for an asylum seeker stating that the card-holder is allowed to work?
  • or unable to produce a valid BRP due to non-delivery or collection?
  • or unable to use the online right to work service due to technical error?
  • evidence to demonstrate that the individual has settled or pre-settled status under the EUSS issued in a Crown Dependancy or is a Frontier Worker in the UK?
  • none of the above?

 

Following these questions, the employer may be asked to provide a reference number relating to the employee’s Home Office records, including an application reference number, a BRP document, a passport number (current or expired) or any tracking reference number.

Depending on the answers given, the online system will determine whether or not you can request an online check from the Home Office. You will then be prompted to enter the relevant details of the employee, together with their job role and details of your business.

In cases where a right to work check is deemed necessary using the Employer Checking Service, the employer will also be asked to provide the following information:

• the employee’s personal and contact details
• the employee’s job title and hours worked
• the employer’s business name, type and contact details

 

In addition, you will need to provide your business name, business type and contact information.

You will be asked to enter this information into an online form, although the employee will need to agree to this first, which they can do verbally or in writing. The employee will also need to provide the employer with an accurate reference number to help identify their Home Office records, as well as their personal details, including full name, date of birth, nationality, home address, contact number, place of birth and year of entry to the UK.

When complete, you should receive an email confirmation of everything you have entered.

Once the Home Office has reviewed the information and carried out the necessary checks, you will be notified of the individual’s right to work status.

 

How long does the Employer Checking service take?

You should receive a response by email within 5 working days of submitting a valid request to the ECS to verify the employee’s right to work and any work restrictions.

In circumstances where an employee has not yet started work, the employer will need to delay their start date until they are in receipt of confirmation of that individual’s right to work by way of a PVN. In contrast, for existing employees applying to extend their leave to remain in the UK, they should be able to continue working for their employer pending any decision on their application, provided that application was submitted prior to expiry of their previous leave. The employer will be given a 28-day grace period from expiry of the employee’s permission, during which time the statutory excuse against civil liability can still be established, providing the employer with enough time to obtain a PVN.

On receipt of a PVN, as with other types of right to work checks, the employer must retain a copy of this as part of the prescribed right to work process. They may also need to retain a copy of the evidence provided by the employee, such as any COA.

 

If the employee has the right to work

If the individual is confirmed to have the right to work, you will be sent a Positive Verification Notice confirming eligibility to work and advising of any restrictions on their permission to work. Under the right to work record-keeping duties, you should retain the PVN and store this document (either in print or online) for up to two years after the individual leaves your employment. The PVN also serves as evidence that you have conducted the correct right to work check in defence of any allegation of breaching the illegal working regulations.

 

If the employee does not have the right to work

A negative verification notice (NVN) is a letter issued by the Employer Checking Service (ECS) to an employer that informs them that an employee does not have the right to work in the UK. NVNs are typically issued as a result of an ECS check that has been conducted by the employer. There are a number of reasons why an employee may receive an NVN. Some of the most common reasons include:

• The employee’s visa has expired.
• The employee’s biometric residence permit (BRP) has expired.
• The employee’s status under the EU Settlement Scheme has expired.
• The employee’s right to work in the UK has been revoked.

 

If the ECS establishes that the individual is not eligible to work in the UK, a Negative Verification Notice will be issued to the employer. In such circumstances, you will not be able to rely on the statutory defence against a civil penalty if you employ, or continue to employ, that individual. If an employer knows or has reasonable cause to believe the individual does not have the right to work and employs them anyway, you risk criminal prosecution punishable by imprisonment for up to 5 years and/or an unlimited fine.

There are employment law issues to be considered before taking action in response to a negative right to work check. As such, it is advisable to seek professional guidance to avoid allegations of unlawful discrimination when rejecting a job applicant or moving to dismiss an existing worker who you discover does not have the right to work.

 

What is a Certificate of Application and how are they used with the ECS?

A Certificate of Application (COA) is the document issued by the Home Office on receipt of an application under the EU Settlement Scheme (EUSS).

Guidance issued in October 2023 removed the requirement on employers to verify digital Certificates of Application with the ECS for individuals with pending EU Settlement Scheme applications made on or after 1 July 2021.

In circumstances where an employee is currently awaiting a decision on an EUSS application, they should provide their employer with their non-digital COA to enable the employer to request a right to work check through the ECS, if necessary. The employer cannot simply rely on the employee’s verbal or written confirmation that they have applied to the EUSS. The employer must have physically seen the original, non-digital COA to be able to request a right to work check using the Employer Checking Service.

 

Retaining right to work records

Employers in the UK are required to retain records of ECS checks for at least two years after the employee leaves their employment. This requirement is set out in the Right to Work record keeping guidance from the Home Office.

The records must show that the employer has:

• Completed an ECS check for the employee
• Received a positive verification notice (PVN) from the Home Office
• Retained a copy of the PVN

Employers can keep ECS records in any format, but they must be secure and accessible. Employers should also have a system in place for reviewing and updating ECS records regularly.

Failure to comply with the requirement to retain ECS records can lead to a civil penalty per breach.

To comply with the requirement to retain ECS records, it is advisable to”

• Create a system for storing ECS records securely. This could be a physical filing system or an electronic system.
• Make sure that ECS records are accessible to authorised personnel only.
• Review and update ECS records regularly to ensure that they are accurate and up-to-date.
  Retain ECS records for two years after the employee has left the organisation.

 

Employees with expiring leave

If an individual has submitted a visa application in-time – ie before it expires – they retain lawful status while the decision is pending and the conditions of their visa remain in place. During this time, however, the employer has to carry out a right to work check or be issued a Positive Verification Notice before the 28th day after the visa expires to ensure compliance.

 

How do online right to work checks and the ECS differ?

An online right to work check is a check that an employer can carry out quickly and independently, without the need to submit a request to the ECS. However, to conduct an online check, the employer will need to ask the employee to generate a 9-character share code to enable them to access and view that individual’s immigration status online.

In addition to those who have valid immigration status held in digital format, this online service also now supports a range of overseas nationals who have pending applications for permission to stay in the UK. For example, if an employee advises their employer that they they have an outstanding but in-time application, and they are an eVisa holder, the employer should ask them to provide a share code. Once in receipt of the share code, the employer can use the online service to carry out the right to work check. An employee may also be able to generate a share code where they are in receipt of a COA, although the online right to work service may direct the employer to verify this via the ECS.

Where applicable in the context of pending applications, the online service will confirm the employee’s right to work and will provide the employer with a statutory excuse for a period of 6 months. However, where an employee has an outstanding application but is unable to provide a share code, or the online service redirects the employer, a request must be made to the ECS for verification in order for the employer to have a statutory excuse.

 

Allegations of non-compliance

If you are facing allegations from the Home Office that your organisation has breached its duties under the prevention of illegal working regulations, you will need to take action quickly. Your next steps will depend on the circumstances and the merit of the allegations. For example, if you have clear and contemporaneous records of compliant right to work checks, you should be able to challenge the fine to have it revoked.

In all cases, you should be cooperative and responsive with the Home Office. Taking professional advice is also recommended to ensure you proceed with the most appropriate option in the circumstances. This could include:

 

1. Pay the penalty

The first option is to simply pay the penalty. This is the simplest and quickest option, but it is also the most expensive given the level of fines that can be issued. If you decide to pay the penalty, make sure to pay it on time to avoid additional late payment fees.

 

2. Object to the penalty

Employers can also object to the penalty, but will need grounds to do so. This should be done within 28 days of receiving the penalty notice. Objections must be made in writing and must state the reasons for the objection.

The Home Office will then consider the objection and decide whether to uphold the penalty, reduce the penalty, or cancel the penalty altogether. If the Home Office upholds the penalty, the employers will have to pay it. The Home Office also has authority to increase the level of fine if the penalty is upheld following an objection.

 

3. Appeal the penalty

If the Home Office upholds the penalty, the employer may be able to appeal the decision to the County Court. Appeals must be made within 28 days of receiving the Home Office’s decision.

The County Court will then hold a hearing to consider the appeal. If the County Court finds that the Home Office’s decision was wrong, it may cancel the penalty or reduce the penalty.

Taking legal advice would be critical to determine the merit of pursuing an appeal, and if you do opt to proceed, ensure that your case is put forward effectively.

 

4. Make changes to prevent illegal working

In addition to paying or challenging the penalty, employers should also take steps to prevent further breaches and allegations of illegal working in the future. This may include:

• Conducting an immigration audit to identify areas of risk and non-compliance
• Conducting thorough right to work checks on all new employees
• Identifying and carrying out follow-up checks on employees with time-limited permission to work
• Keeping records of all right to work checks
• Training staff on illegal working and right to work compliance

 

Need assistance?

DavidsonMorris’ business immigration lawyers specialise in all aspects of the prevention of illegal working legislation and immigration compliance.

We work with employers to provide guidance on right to work compliance consultancy and training, including auditing and reviewing processes, systems and documents, and delivering training to HR and managers responsible for conducting the checks and maintaining personnel records.

If you are facing a civil penalty, we can help. Challenging a civil penalty is a complex process. We can guide you from the outset, establishing if you have grounds to appeal and building the case to challenge the Home Office’s decision.

Contact us for specialist UK immigration compliance expertise.

 

Employer Checking Service FAQs

What does ECS stand for?

ECS stands for Employer Checking Service. It is an online system which allows UK employers to request verification from the Home Office that an individual has the right to work in the UK.

What is Employer Checking Service?

The Employer Checking Service is a free Home Office service available to employers to check the right to work of an employee, for example, where they have made an in-time visa application but a decision is still pending.

Do you need permission to use the Employer Checking Service?

You will need permission from the individual to check their working status using the online system. You will also need the individual's Home Office reference number or case ID.

How long does Employer Checking Service take?

Following a valid request for a right to work check from the Employer Checking Service, an employer should receive a response within 5 working days, although they must defer an employee’s start date until they have a positive verification notice.

Is Employer Checking Service free?

The Employer Checking Service is secure and free to use, where an employer can use this service to request a positive verification notice confirming an employee’s right to work where an online or manual check cannot be conducted.

Do you need a share code for the Employer Checking Service?

To clarify an employee’s right to work using the Employer Checking Service, the employee does not need to generate a share code, but they may need to provide the employer with a reference number relating to their Home Office records.

Last updated: 5 October 2023