Right to Work Check: Employer Compliance Guide

As a UK employer, you have a legal obligation to comply with the prevention of illegal working legislation. This requires you to conduct a Right to Work check on every UK-based employee to verify they have the requisite permission to perform the work on offer.

The Right to Work regime has been subject to extensive reform in recent years, with different types of Right to Work check now available for certain types of workers, and with substantial increases in illegal working fines.

By carrying out Right to Work 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.

This means it is good risk management practice to ensure your processes for conducting Right to Work checks are compliant and implemented consistently and correctly throughout your organisation.

In this guide, we explain what a Right to Work check is, the different ways to carry out a Right to Work check, with guidance on specific situations and types of workers, to help employers reduce the risk of breaching their illegal working obligations.

 

Section A: What is a Right to Work Check

 

A Right to Work check is a mandatory process that UK employers must undertake to verify that all of their employees have the legal right to work in the United Kingdom.

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.

By conducting these checks in the correct way, employers ensure that they are hiring individuals who are legally permitted to work, and where there are allegations of non-compliance, evidence of a compliant Right to Work check can provide the employer with grounds to challenge proposed enforcement action.

 

1. Right to Work Penalties

 

The consequences of failing to comply with the Right to Work Check requirements can be severe and far-reaching. Non-compliance can result in:

 

a. Civil Penalties: Employers can face substantial fines for employing individuals without the legal right to work in the UK. The penalties can be as high as £45,000 per illegal worker for a first offence, increasing to £65,000 for repeat offenders.

b. Criminal Liability: In more serious cases, employers may face criminal charges, which can lead to unlimited fines and even imprisonment, if the employer knowingly employs someone without the right to work or has repeatedly failed to comply with the legal requirements.

c. Reputational Damage: Being found in breach of right to work laws can severely damage a company’s reputation. The organisation will be added to the Home Office’s list of offences, potentially leading to negative publicity, loss of customer trust, and harm to the brand’s image, which can have long-term impacts on business relationships and market position.

d. Operational Disruption: Non-compliance can result in business disruptions, including the loss of key employees who are found to be working illegally, and diverting personnel time and resources away from the normal course of business to deal with the issue.

e. Sponsor Licence Penalties: Non-compliance can result in a sponsor licence suspension or revocation, which may lead to your sponsored workers’ visas being curtailed.

 

2. Who Needs a Right to Work Check

 

The Right to Work Check is a legal requirement that applies to all employers in the UK, regardless of the size or nature of their business, to verify that every worker in their workforce has the legal right to work in the UK.

Importantly, as part of your recruitment and onboarding procedure, pre-employment 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.

The Right to Work Check must be conducted for all potential employees before they begin employment. This includes:

 

a. Permanent Employees: Any individual hired on a permanent basis must have their right to work verified before they commence their role.

b. Temporary and Seasonal Workers: Employers must also check the right to work for temporary staff, including those hired for short-term projects or seasonal work.

c. Part-Time Employees: Part-time workers, regardless of the number of hours worked per week, are subject to the same right to work verification as full-time employees.

d. Casual Workers and Zero-Hours Contracts: Even workers on casual or zero-hours contracts, where there is no guaranteed minimum number of hours, must have their right to work checked.

e. Contractors and Freelancers: While independent contractors and freelancers may not be traditional employees, employers must ensure that any such individuals engaged through their business have the right to work in the UK. This is particularly important if the employer controls how the work is carried out.

f. Volunteers: In some cases, volunteers and unpaid interns may also require a right to work check, especially if there is a contractual obligation or expectation of work similar to that of paid employees.

 

In practice, employers may encounter more complex circumstances where the right to work may not be straightforward or immediately clear. For example:

 

a. EU, EEA, and Swiss Citizens Post-Brexit: Following Brexit, citizens from the EU, EEA, and Switzerland are no longer automatically eligible to work in the UK. Employers must now check their status under the EU Settlement Scheme or confirm they have a valid visa.

b. Student visa holders: International students typically have restrictions on the number of hours they can work during term time. Employers must check these details to understand any work limitations.

c. Seasonal Agricultural Workers: For sectors like agriculture, specific visa schemes, such as the Seasonal Worker Visa, may apply. Employers must verify that these workers have the appropriate visa for the duration of their employment.

d. Sponsored Workers: Individuals employed under sponsored work routes such as the Skilled Worker visa or Global Business Mobility visas must have their sponsorship and visa details checked. Employers must ensure they hold a valid Certificate of Sponsorship and the appropriate visa.

e. Family Members of Migrants: Family members of individuals who have the right to work in the UK may also be eligible to work, but employers must check their specific visa or permit conditions.

f. Asylum Seekers and Refugees: Asylum seekers may have limited rights to work, typically requiring permission from the Home Office. Refugees granted asylum in the UK have the same work rights as UK citizens.

 

Employers may wish to take professional advice if they are unsure about verifying eligibility to work in more complicated circumstances.

 

Section B: How to Conduct Right to Work Checks

 

In line with government guidance on Right to Work checks, there are a number of ways employers should conduct compliant document checks:

 

a. Manual Right to Work checks: Manual Right to Work checks involve physically examining original documents provided by the employee to verify their eligibility to work in the UK.

b. Digital Right to Work checks: Digital Right to Work checks use electronic verification systems provided by the Home Office to confirm an individual’s right to work.

c. Online Right to Work checks using a share code: Online Right to Work checks using a share code involve the employee providing a share code and their date of birth, which the employer enters into the Home Office’s online service to verify their right to work.

d. Home Office Employer Checking Service: The Home Office Employer Checking Service is used when it is not possible to carry out the other types of checks, such as when an individual’s documents are with the Home Office or during an immigration appeal, allowing employers to request official confirmation of the right to work.

 

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.

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.

 

Section C: 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.

 

1. 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.

 

Acceptable Right to Work Documents

 

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. Acceptable Documents for Manual Checks are set out by the Home Office on separate lists, referred to as List A and List B group 1 and List B group 2.

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 EU nationals coming into the UK after 1 January 2021.

 

 

 

 

 

Under List A, 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

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.

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 will need to provide a share code for a digital Right to Work check.

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 of this.

List B group 1 are those employees with limited time to live and work in the UK, and 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, with 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.

 

 

2. 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:

 

a. Ensure any photographs on the documents are the same person in front of you.

b. 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.

c. 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.

 

3. 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.

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.

 

4. 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 confirm that the applicant has the Right to Work. This would usually apply where:

 

a. You believe the individual has an application or matter such as an appeal pending with the Home Office.

b. The individual is a Commonwealth citizen who has been resident in the UK since before 1988.

c. The individual has Application Registration Card.

d. The individual has Certificate of Application less than 6 months old.

This service is free to use, and if the individual is confirmed as having the Right to Work, the employer will be issued a ‘Positive Verification Notice’ as proof of their status.

 

Section D: 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.

The Home Office issued updated guidance in February 2023 in relation to the availability of a statutotry excuse when using IDVT. Specifically, IDVTs can only be relied on as part of a digital check, and not an online ECS or manual check. The guidance prohibits the use of IDSPs for manual checks of physical papers or checks through the Home Office’s online service; “… other than where you use an IDSP expressly for right to work checks of British or Irish citizens with a valid passport (or Irish passport card), it is not possible to establish a statutory excuse against liability for a civil penalty if the manual document-based check, or online service right to work check, is performed by an IDSP.”

 

1. 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.

 

2. 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.

 

Section E: Online Right to Work Checks using Share Codes

 

Employers are able to use the online checks 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. A biometric residence permit or

b. Biometric residence card or

c. Pre-settled or settled status under the EU Settlement Scheme or

d. 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.

 

1. Right to Work Step 1 – Check

 

For online checks, the employer does 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.

 

2. 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.

 

 

3. Online Checks Extended to eVisa Holders

 

Following Home Office guidance published in February 2023, eVisa holders can now provide their employer with a share code to verify their right to work, provided they are either making an in-country eVisa application to remain in the UK using the UK Immigration: ID Check app; they do not have settled or pre settled status or a frontier worker permit; their application was made after 26 January 2023 and before the expiry of their existing immigration permission; and they are currently awaiting a decision on their application, administrative review or appeal.

In these circumstances, when the employee provides the share code, the employer will be able to rely on a statutory excuse for six months after the date of the online check. This removes the need to use the Home Office Employer Checking Service. Follow up checks will be required in the usual way in advance of visa expiry.

 

Section F: 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 digital 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.

It can take up to five days for the Home Office to advise of the individual’s status. If they have the Right to Work, a Positive Verification Notice will be issued to the employer, which acts as proof of eligibility to work for six months. During this period, the PVN can be used by the employer to rely on a statutory excuse in the event of illegal working allegations.

 

Section G: Follow-Up Right to Work Checks

 

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.

 

Section H: End of COVID-adjusted Right to Work Check Scheme

 

The COVID-adjusted Right to Work scheme ended 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.

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, is no longer acceptable or provides any defence against enforcement action.

 

Section I: 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.

 

1. 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.

 

2. Existing EU Workers Without Settled Status: Rules Pre-13 February 2024

 

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.

These rules applied prior to 13 February 2024, when new guidance was issued: If after 30 June 2021 it was identified that an EU worker had 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 were therefore without lawful status in the UK, the employer would not have to terminate the worker’s employment provided:

 

a. they were employed by the organisation prior to 30 June 2021; and

b. the employer advises the worker to make their settled status application within the grace period; and

c. the worker then provides their employer with their COA, which the employers uses for the Employer Checking Service; and

d. the employer receives a positive verification notice as a result of the ECS check.

 

If the EU worker was then successful in their application for settled status, they should advise their employer, who could then use the ECS to confirm their working status.

If the worker’s settled status application remained pending after six months, the employer was to carry out a follow-up check. If the follow-up check revealed the application had in fact been refused, and the worker had lost the Right to Work, the guidance stated 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 discovered that their settled status application was refused would be in contradiction of Schedule 4 of the Immigration (Citizens’ Rights Appeals) (EU exit) Regulations 2020, which amended 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 were advised to take professional advice to avoid related issues such as discrimination or unfair dismissal, as well as allegations of illegal working.

 

3. Existing EU Workers Without Settled Status: Rules After 13 February 2024

 

New guidance issued with effect from 13 February 2024 confirmed that where an employer becomes aware that an existing EEA worker has lost their UK Right to Work, the employer must take appropriate action, which could include terminating their employment without providing any grace period to regularise their status. Again, taking professional advice is recommended to avoid disputes and issues in relation to any dismissal.

 

Section J: 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.

 

Section K: Summary

 

Every UK employer operates under the legal requirement to prevent illegal working by carrying out Right to Work checks. 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.

Non-compliance can result in unwanted Home Office scrutiny – with investigations, potential substantial fines and other sanctions such as criminal processings and reputational damage.

To avoid breaching your Right to Work duties, your organisation should have systems, policies and procedures in place to facilitate the necessary checks to be carried out. All personnel involved in recruitment and onboarding for your organisation should also be trained to understand the rules – which are subject to frequent change – and their responsibilities to comply with the regulations and avoid penalties.

Employers are also advised to ensure they conduct Right to Work checks on all new employers, and do not discriminate unlawfully against certain workers due to nationality, race or ethnicity.

 

Section L: Need Assistance?

 

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

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.

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.

If you have a question about any aspect of Right to Work checks and avoiding Home Office penalties, or for information about support with your Right to Work services, including e-learning, training, mock audits and consultancy, contact us.

 

Section M: 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.

 

What is the purpose of a Right to Work Check?

The purpose of a Right to Work Check is to ensure that all employees have the legal right to work in the UK, helping employers comply with immigration laws and avoid penalties.

 

Who needs to undergo a Right to Work Check?

Every potential employee, including permanent, temporary, part-time, freelance workers, and volunteers, must undergo a Right to Work Check before commencing employment.

 

What documents are required for a Right to Work Check?

Acceptable documents depend on the individual’s nationality and the type of check being carried out. For example, a British citizen could provide a valid passport for a manual check. There are specific lists of acceptable documents (List A and List B).

 

How has Brexit affected Right to Work Checks for EU citizens?

Post-Brexit, EU, EEA, and Swiss citizens who were in the UK before 31 December 2020 should have applied to the EU Settlement Scheme to maintain their lawful, indefinite status. Those arriving after 1 January 2021 must follow the points-based immigration system and present appropriate visas.

 

What is the difference between manual, digital, and online Right to Work Checks?

Manual checks involve physically examining original documents. Digital checks use electronic verification systems such as eVisas, while online checks use a share code and date of birth to verify status through the Home Office’s online service.

 

What is the Home Office Employer Checking Service?

The Home Office Employer Checking Service is used when other types of checks cannot be carried out, for example, because an individual’s documents are with the Home Office or during an immigration appeal, allowing employers to request official confirmation of the right to work.

 

How often should follow-up checks be conducted?

For employees with limited leave to remain, follow-up checks should be conducted before their current permission expires. This ensures continued compliance with right to work requirements.

 

What are the penalties for not conducting proper Right to Work Checks?

Employers can face civil penalties of up to £45,000 per breach for a first offence, increasing to up to £6,000 per breach for repeat offences, in addition to potential criminal charges and imprisonment, as well as reputational damage and operational disruptions.

 

How long must I retain records of Right to Work Checks?

Employers must keep records of right to work checks for the duration of the individual’s employment and for at least two years after their employment ends. This includes copies of documents and dates of checks.

 

Can I accept copies of documents instead of originals for a Right to Work Check?

No, you must examine the original documents in the presence of the employee. Copies or scans are not acceptable for initial verification.

 

What should I do if I am unsure about the authenticity of a document?

If you have doubts about a document’s authenticity, use the Home Office Employer Checking Service for verification or seek legal advice to ensure compliance.

 

Are there specific training requirements for staff conducting Right to Work Checks?

While there are no mandatory training requirements, it is best practice to ensure that HR staff and those responsible for conducting checks are properly trained and aware of the latest legal requirements and procedures.

 

Can I challenge a civil penalty for a right to work breach?

A statutory excuse protects employers from liability for immigration civil penalties if they have conducted right to work checks correctly. To obtain one, follow the proper procedures for checking and recording an employee’s right to work.

 

Section N: Additional Resources

 

UK Points-Based Immigration System
https://www.gov.uk/government/publications/uk-points-based-immigration-system-employer-information
Information on the UK points-based immigration system and how it affects hiring EU and non-EU citizens.

 

EU Settlement Scheme (EUSS)
https://www.gov.uk/settled-status-eu-citizens-families
Information on how EU, EEA, and Swiss citizens can apply for settled or pre-settled status to continue living and working in the UK.

 

Home Office Employer Checking Service
https://www.gov.uk/employee-immigration-employment-status
Service to verify an employee’s right to work if they cannot provide the necessary documents.

 

Home Office Online Right to Work Checking Service
https://www.gov.uk/view-right-to-work
A service for real-time verification of an individual’s right to work status.

 

GOV.UK: Working in the UK
https://www.gov.uk/browse/visas-immigration/work-visas
Comprehensive information on various work visas, including eligibility and application processes.