How to Use Right to Work Share Codes

How to Use Right to Work Share Codes

Employers in the UK are under a legal duty to check the right to work status of all its workers. One of the ways employers can do this is using online status checks.

This guide on right to work share codes is for employers, managers and HR personnel to understand how to use share codes as part of compliant right to work checks.

What is a Right to Work share code?

Share codes are a way for an employer to access proof that a worker from outside the UK and Ireland has a right to work in the UK.

A share code is an alphanumeric code made up of nine digits and characters and to create one, a worker will need one of the following:

• their biometric residence permit number
• their biometric residence card number
• their passport or national identity card

Share codes were introduced by the Home Office post-Brexit in July 2021 to ease the right to work process for both employers and workers. Employers can use these codes to check on the government’s online service whether the individual is eligible to work in the UK.

Who can rely on a share code to prove their right to work?

Not all workers can rely on a share code to prove their right to work. EU nationals with Settled Status will have an online account with the government’s checking service, showing digital proof of their settled status. Migrants from outside the EU, EEA or Switzerland should also provide their biometric residence cards or permits, which are then also stored online.

Workers are not obliged to provide their employer with a share code. In the event the individual does not or cannot provide a share code, the employer should use an appropriate, alternative right to work check, such as the Employer Checking Service or a manual document check.

How do workers get a share code?

To generate a share code, the worker logs into their UK government account with the same ID they used for their Home Office application. A 6-digit code will be sent to their phone which they should use to log on and access their information. They should state why they need a code, upon which they will be able to create the share code, which will then appear on the screen.

Once a worker has been given a share code, which is valid for 90 days, they can share it with a prospective employer who can check whether the worker is eligible to work in the UK and if so for how long, as well as what work they are eligible to do. They can also check whether the worker has access to the NHS and other UK state benefits and whether they are legally entitled to open a UK bank account or apply for credit. All an employer needs to access this information is the code and the applicant’s date of birth and they can then view all the details on the government’s online checking service.

What if a worker does not have a share code?

If a worker has an outstanding appeal or application with the Home Office, they may not be able to get a share code. If they arrived in the UK before 1989, they may not have the necessary documents to prove their right to work.

In this case, the employer must ask the Home Office to check a worker’s immigration status through the Home Office Employer Checking Service (ECS). Employers must also check with the Home Office if a worker has a digital or non-digital Certificate of Application stating the need to clarify the situation with the Home Office, or if they have an Application Registration card which must state that the worker is able to carry out the type of work being offered. The employer will receive a Positive Verification Notice confirming the applicant’s right to work, which should be kept safely.

Manual right to work checks

If a worker cannot produce a share code, the employer can also check an employee’s right to work status by checking relevant acceptable documents. The employer should check the documents in the employee’s presence, ensure their validity, take copies of the documents, and record the date the check was made.

More specifically, an employer should ensure that:

• the documents are genuine, original, valid, and belong to the worker ¬
• all photos are the same and look like the applicant
• dates of birth are the same
• the worker is eligible to carry out the type of work they are applying for
• if there are discrepancies in the applicant’s name. they have supporting documentation to explain this, such as a marriage certificate

When taking copies of the documents, an employer should take a clear photocopy. For passports, copy the page with the expiry date and the applicant’s details. For all other documents, a complete copy should be made. The copies should be kept for the time the applicant is employed and for two years after their employment is terminated. If their right to work is time limited, further checks should be made when it is about to expire. Data protection law should always be adhered to when storing this information.

Digital right to work checks

An alternative method as of April 2022 is to check an applicant’s right to work by using Identity Document Validation Technology (IDVT). An employer can access a list of right to work check providers set up by the government.

If a document is about to expire and the applicant has applied to extend their leave, they can still prove their right to work through the ECS or by producing a different document. If the Home Office makes a mistake in a worker’s immigration status, the worker can complete a form informing the Home Office that it has the wrong information.

Follow up checks

Where an individual has a time-limited right to work, such as under a short-term work visa, the employer has to carry out follow-up right to work checks when their eligibility is due to expire, to verify the individual has secured continued permission to work.

Avoiding unlawful discrimination

Right to work checks must be carried out on all new employees, regardless of their nationality, to confirm their eligibility to work.

Employers should ensure right to work checks are conducted consistently on all prospective employees, including British citizens, and that employees are chosen for their suitability to the post, not on their immigration or right to work status. Applicants should not be asked about their immigration status because of their race, nationality, or ethnic origins.

Employers should be extremely careful not to discriminate by withdrawing a job offer or dismissing someone because of their right to work status. A dismissal may be unfair if the employer did not treat the worker fairly by, for example, refusing to check their online share code, not giving them enough time to get the right documents, or disputing the right to work documentation when it was clearly correct. If the worker has been in employment for two years or more, they may be able to claim unfair dismissal.

Penalties for non-compliance

Carrying out compliant right to work checks on employees or prospective employees is extremely important for an employer. If they do not carry them out adequately, or at all, they could find themselves employing an illegal worker and facing a civil penalty of a fine of up to £20,000. An employer will be sent a civil penalty notice if found liable and will have 28 days within which to respond and pay the fine. An employer’s details may also be published by Immigration Enforcement as a warning to other businesses to ensure that the proper checks are made. If, however, an employer can prove they did carry out the correct checks, they will not have to pay the civil penalty.

An employer could also be guilty of a criminal offence and face criminal sanctions if they are found liable for employing someone they knew or “had reasonable cause to believe” did not have the right to work in the UK. Penalties are harsh if an employer is found guilty: they could face five years imprisonment and an unlimited fine and these will be imposed if an employer had reason to believe the worker had no right to enter or remain in the UK, their leave had expired, they were not eligible to do certain types of work or that their immigration papers were false or incorrect.

An employer can consult the government’s statutory codes of practice for further information about preventing the employment of illegal workers and understanding the penalties they may face if they do not. These codes also explain how an employer can avoid discrimination under the Equality Act 2010 when carrying out right to work checks. The government publishes quarterly reports showing the number of civil penalties issued to employers who have not complied with the codes in each region of the UK. These reports show the number of illegal workers found by listing the trading name of the business and the name of the party liable for the civil penalty, as well as giving the full address of the business and the value of the fine issued to it. These reports serve as an important reminder to all employers of the consequences of non-compliance: if found guilty, there is nowhere to hide. Being publicly named will no doubt have a detrimental effect on the future of a business, both in terms of its reputation and credibility, and in the fact that it will deter prospective employees seeking work there.

Therefore, employers must be fully aware of their obligations in the right to work process under UK employment law – and ensure that HR teams and managers are also well-informed – as well as the consequences of not abiding by these obligations. Not only is it an employer’s legal duty to prevent illegal working, but it is also in everyone’s best interests to employ workers who are legally entitled to work in the UK. Right to work share codes make the whole checking process easier for all.

 

Key pointers for employers

• UK employers employing EEA and Swiss nationals after 1st January 2021 will require the relevant sponsor licence.
• Irish nationals can rely on their passport to prove their right to work.
• Follow up right to work checks do not need to be made on existing EU workers if they came to the UK before 1st July 2021.

Right to work share codes FAQs

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Legal disclaimer

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.