Every UK employer has a responsibility to prevent illegal working by checking all of their workers have permission to work.
This is done by conducting right to work checks before new recruits start their job, to ensure they aren’t disqualified from working in the UK, or from undertaking the work in question, because of their immigration status.
If you fail to carry out right to work checks, or don’t carry them out in the correct way, and you’re found to be employing workers illegally, you may have to pay a civil penalty fine of up to £20,000 per worker.
More seriously, if you know or have reasonable cause to believe that an individual doesn’t have permission to work in the UK, or to do the work on offer, and you employ them anyway, you may be criminally prosecuted. This includes where you’ve conducted a right to work check and, as a result of that check, you’re aware or suspect that an individual doesn’t have permission to work in the UK, or any prior permission has expired. Employing illegal migrants is punishable by up to 5 years in prison, an unlimited fine, or both.
The Home Office provides guidance for employers which specifies how to conduct right to work document checks correctly. By complying with these rules, employers can rely on a ‘statutory excuse’ to defend penalties and allegations of illegal working. If you’re found to be employing someone who isn’t permitted to do the job on offer, but you’ve conducted a right to work check as required under the rules, you will be able to challenge the penalty.
Right to work checks & non-UK workers
Following the end of EU free movement, most migrant workers must now have valid immigration status to work legally in the UK.
For EEA and Swiss nationals, this may be permission under the EU Settlement Scheme (EUSS), whilst for non-EEA or Swiss nationals, and those without settled or pre-settled status under the EUSS, this is likely to be in the form of a work visa.
Right to work checks should not only be carried out on all prospective employees, but also existing employees that have time-limited permission to work in the UK. For example, those with permission under the Skilled Worker route, unless they’ve applied to settle in the UK, will have limited leave to remain. You must therefore conduct a follow-up check shortly before their grant of leave is due to expire. Once their permission has expired, unless that individual has applied for an extension of their work visa, it will be illegal to continue to employ them.
Equally, an EEA or Swiss national with non-settled status under the EUSS will only have the right to work in the UK for a period of 5 years before needing to apply for settled status. However, for existing EEA and Swiss employees, there’s no need to conduct retrospective or follow-up checks — provided they began working for you before 1 July 2021, and the initial check was undertaken in accordance with the guidance applicable at the time, for example, they provided you with an EEA passport confirming their nationality.
Right to work checks should form an integral part of an organisation’s pre-employment checks.
Importantly, right to work checks have to be conducted on all workers, regardless of nationality or immigration status. This means checks have to be performed on British citizens as well as EU and non-EEA nationals. If checks are not conducted consistently on all workers, it would be considered unlawful discrimination.
All employees responsible for recruitment and onboarding within an organisation should be equipped and trained on the latest right to work requirements to ensure consistency of the process across all parts of the organisation.
In particular, record keeping requirements must be clear and well communicated, and records should be checked regularly through audits and spot-checks to ensure compliance and that standards are being met. Importantly, employers have to retain records of right to work checks and documentation for up to two years after an employee leaves the organisation.
How to do right to work checks
There are three ways of conducting right to work checks in the UK. You can either do an online check using the Right to Work Checking Service, or carry out a manual document-based check, or use the Employer Checking Service (ECS). The methods available to you will depend on the circumstances.
Online right to work checks
The quickest and simplest way to check the eligibility of either prospective or existing employees to work in the UK is to do so online. This can be done using the Home Office ‘Right to Work Checking Service’, although the individual will need to provide you with a share code to enable you to access and view their right to work record.
Having been given permission by the worker to access their Home Office record, and provided with a valid share code, you’ll need to input this code online, together with their date of birth. You’ll then need to check that the online photograph matches the individual in question.
Provided the individual has the right to work in the UK, and undertake the work in question, you can go on to employ them or continue to employ them. However, you’ll need to securely retain either an electronic or hard copy of the response provided by the online service for as long as that person is in your employment, plus an additional two years.
Online checks are currently only available to migrant workers holding certain status, for example, those with status under the EUSS.
Manual right to work checks
In some cases, a manual check may be unavoidable, for example, those with EU settled status or where a manual check cannot be conducted as their right to work is held solely in digital format. Equally, a migrant worker doesn’t have to provide you with a share code to check their right to work online. In these circumstances, you’ll need to manually check any acceptable right to work document(s).
When conducting a manual right to work check, you’ll need to request certain documents from either List A or B of acceptable documents, which we discuss below. These must be originals, and must be checked over with the individual present. Provided that person is the rightful holder of the document(s), the dates for their right to work in the UK haven’t expired, they’re permitted to do the type of work that you’re offering and the document(s) appear genuine, you can go on to employ them or continue to employ them.
However, you’ll need to make and retain copies in a format that cannot be manually altered. You must also record the date of the check, and securely store this evidence for at least 2 years after that person has stopped working for you.
Employer Checking Service
It may not be possible in some cases to conduct either an online or manual right to work check, for example, where the worker has an outstanding Home Office application made prior to their previous leave expiring, or an outstanding appeal against a Home Office decision. If you’re reasonably satisfied that this is the case, you can instead request a Positive Verification Notice from what’s known as the Employer Checking Service (ECS).
To request this type of check, you’ll need to provide details of your business, the individual’s personal details and job title, and their Home Office reference number or case ID. If the person is permitted to work in the UK, you should receive a notice from the Home Office confirming this, which you’ll need to retain for your records, as with any other right to work check.
For prospective employees, you should delay their start date until you’re in receipt of confirmation from the Home Office of their right to work. For existing employees applying to extend their permission, they should usually be able to carry on working pending any decision on their application, provided that application was submitted prior to expiry of their leave. In these circumstances, your statutory excuse against any civil penalty will continue for 28 days from the expiry of your employee’s permission to enable you to obtain positive verification.
Acceptable right to work documents
There are various documents that can be accepted as proof of eligibility to work in the UK from two separate lists: List A and List B.
List A contains the range of documents that you can accept for someone who has a permanent right to work in the UK. These include, for example, a current Biometric Residence Permit issued by the Home Office indicating that the holder has no time limit on their stay. If you conduct the right to work check correctly before an individual’s employment begins, provided you’ve been given a genuine and valid document from List A, you’ll establish a continuous statutory excuse. This means you’ll not have to conduct any follow-up checks on this person.
In contrast, List B contains a range of documents that you can accept from someone who has a temporary right to work in the UK. These can include, for example, a current Biometric Residence Permit endorsed to show that the holder is allowed to temporarily stay in the UK and to do the type of work in question. If you conduct the right to work check correctly having been given a List B document, you’ll establish a time-limited statutory excuse against any civil liability. This means you’ll be required to conduct a follow-up check to retain that excuse.
However, new right to work rules are due to come into force — from 6 April 2022 — changing how employers can verify the immigration status of those with a Biometric Residence Permit (BRP), Biometric Residence Card (BRC) and Frontier Worker Permit (FWP). Up to 5 April 2022, employers can continue to carry out manual right to work checks on physical cards. After this date, BRP, BRC and FWP-holders will only be permitted to prove their right to work through the Home Office online service. This means that BRCs, BRPs and FWPs will soon be removed from the lists of acceptable documents used for manual checks.
End of COVID-19 adjusted right to work checks
When checking the validity of the document(s) provided to you, you should ensure that you do this in the presence of the holder. This can currently be in person or via live video link, although in either case you must have the original document(s) in your physical possession. You cannot rely on the inspection of documentation via a live video link, or check a faxed or scanned copy, where the document(s) must have been posted to you.
The ability to conduct right to work checks remotely, introduced in response to the difficulties arising from the COVID-19 pandemic, are due to come to an end on 5 April 2022. However, following positive feedback to the temporary adjusted right to work checking process, and in recognition of moves to hybrid and alternative working models, a long-term digital solution is being introduced for those unable to use the online right to work checking service, including British and Irish citizens. New guidance on this will be issued prior to 6 April 2022.
Right to Work checks FAQs
What are right to work checks?
A right to work check, either online or manual, is a check to ensure that a person isn’t disqualified from working in the UK, or from carrying out the work in question, by reason of their immigration status.
What are the three steps of a right to work document check?
The three basic steps when conducting a manual check are to ask to see original documents from either List A or List B of acceptable documents; check these are valid, with the individual present; and make and retain copies.
What counts as proof of eligibility to work in the UK?
There are two lists of documents that can count as proof of a person’s right to work in the UK: those showing a permanent right to work (List A), and those showing a time-limited right (List B).
Do I need to check right to work for a contractor?
There’s no requirement to conduct a right to work check for those not working directly for you, although knowing that contractors have permission to work in the UK can help to prevent any disruption or risks to your business.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.