All employers have a responsibility to prevent illegal working in the UK. By conducting simple right to work checks, employers ensure an individual is not disqualified from carrying out the work in question due to their immigration status.
Employers can use the government guidance on the right to work checks which can be found on the gov.uk website, by doing so they will have a statutory excuse against liability for a civil penalty in the event they are found to have employed someone who is prevented from carrying out the work in question due to their immigration status.
Preventing illegal working is crucial in eliminating illegal migration, as this may lead to the exploitation of vulnerable individuals, have a negative impact on lawful workers and other market abuses such as tax evasion, exploitative working conditions, including modern slavery.
How to conduct a right to work check?
Before employing someone you should check they are legally allowed to do the work in question. Where individuals have a time-limited right to work, a follow-up check should be conducted before it is due to come to an end.
Currently, there are two types of right to work checks:
- Manual document-based check
- Online check
Where an individual has an outstanding application, administrative review or appeals or if the immigration status requires verification by the Home Office, the Employer Checking Service can be used.
How to conduct a manual document-based check?
Step 1: Obtain original documents from either List A or List B of acceptable documents contained in Annex A of the gov.uk guidance note (here).
Step 2: You must check the documents are genuine and the person presenting the documents is the prospective employee in question, the rightful owner of the document and is allowed to complete the type of work being offered. You must check:
- Photographs and date of birth are consistent across all documents and with the person’s appearance in order to detect impersonation;
- Expiry dates for permission to be in the UK have not passed;
- Any work restrictions to determine if they are allowed to do the type of work on offer, for example students may have limited permission to work during term-times, you must also obtain, copy and retain details of their academic term and vacation times covering the duration of their period of study in the UK for which they will be employed;
- The documents are genuine, have not been tampered with and belong to the holder; and
- The reason for any difference in names across documents can be explained by providing evidence (e.g. original marriage certificate, divorce decree absolute, deed poll). These supporting documents must also be photocopied and a copy retained.
Step 3: You must keep a record of each document you have checked by either keeping a hard copy or a scanned copy in a format which cannot be manually altered, such as jpeg or pdf documents. You are required to keep the documents for the entirety of the employment and for a further 2 years after the employment has ended. In the event you must demonstrate you have performed a right to work check, you must be able to produce the documents quickly to retain a statutory excuse.
Make a note of the date on which the check is conducted, by making a date declaration on the copy or by holding a record elsewhere, securely, which can be shown on request. For example “the date on which this right to work check was made: [insert date]’ would be a suitable declaration.
You may be subject to a civil penalty where you fail to record a date on which the check was performed.
How to conduct an online right to work check?
An online right to work check will provide you with a statutory excuse against a civil penalty. You can do an online check by using the online service found here. Not all individuals will have an immigration status that can be checked online. The online right to work checking service will set out the information you need. Where the online check isn’t possible, you should conduct the manual check. Currently the online service support can be used by those who hold:
- A biometric residence permit (BRP)
- A biometric residence card (BRC)
- Status issued under the EU Settlement Scheme
- A digital Certificate of Application to the EU Settlement Scheme issued on or before 30 June 2021
- Status issued under the points-based immigration system
- British National Overseas (BNO) visa; or
- Frontier workers permit (FWP)
Employees should be given every opportunity to demonstrate their right to work and you cannot insist they use the online service or discriminate against those who choose to prove their right to work by providing documents which are featured on the acceptable documents list and this will remain the case up until 5 April 2022.
Significant changes to right to work checks for biometric residence permits holders
On 16 December 2021, the Home Office updated the guidance for employers for how right to work checks should be carried out. One key change affects individuals holding BRP’s form 5 April 2022.
Currently employers can conduct right to work checks of BRP’s in 1 of 3 ways.
- Using the Home Office’s online right to work check service;
- Using the physical card to conduct a manual check; or
- Follow the Home Office’s adjusted right to work check process which allows employers to check physical documents virtually during the pandemic period.
Employer’s should not insist employee’s use the online service to prove their right to work and should ensure they do not discriminate against those who wish to use their physical card as evidence and this will remain the position until 5 April 2022.
From the 6 April 2022 onwards, employers should not undertake checks by asking to see the physical biometric card, even if it is valid. FWP, BRP and BRC’s will be removed from the list of acceptable documents used to conduct a manual right to work check. The right to work check will not be compliant if the employer fails to use the online checking process. This will result in the employer not having a statutory excuse from a civil penalty, which can be up to £20,000 per worker, if it is found the individual does not have the right to work in the UK. For reassurance, the Home Office has confirmed that employers will not need to carry out retrospective checks on individuals who previously used their physical BRP.
Who do you conduct checks on?
Checks should be conducted on all prospective employees to demonstrate their right to work as provided by the gov.uk code of practice in the right to work guidance note
When do you conduct follow up checks?
Follow up checks should be carried out where permission comes to an end for individuals who have time-limited permission to work in the UK. Individuals who provide documents from List B will have restrictions on their right to work in the UK.
- Group 1 documents provide a time-limited statutory excuse which expires when the person’s permission to work expires.
- Group 2 documents provide a time-limited statutory excuse which expires six months from the date specified in their Positive Verification Notice.
For further information you can find the gov.uk guidance note here. Alternatively there is support available for employees and employers carrying out right to work checks.
Employer Enquiry Helpline/UKVI Resolution Centre
Telephone: 03007906268 (Mon - Thu 9:00am - 4:45pm and Fri 9:00am - 4:30pm)
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The opinions on this page are for general information purposes only and do not constitute legal advice on which you should rely.