A guide to right to work checks

Employers in the UK are required to conduct right to work checks to ensure that their employees have the legal right to work. If the employer knows, or ought to know, that the individual does not have permission to work, they can face civil penalties of up to £60,000 and can also face criminal sanctions and closure of the business.

If the employer conducts the checks as set out in the Home Office guidance and the codes of practice, they will have a statutory excuse against liability for a civil penalty in the event they are found to have employed someone who does not legally have the right to work in the UK.

In other words, when the right to work check was completed correctly and before the start of the employment, if the Home Office subsequently finds that the employer has employed someone who does not have the right to do the work in question, then the employer should not receive a civil penalty for the illegal worker in question.

When must a right to work check be performed?

Employers must verify the right to work of all employees before the individual starts working for them. This can be done at the interview stage or before the individual’s first day at work and it involves checking the individual’s identity, nationality and, if applicable, the validity of their visa, ensuring it permits the individual to work in the role offered.

Conducting a right to work check is a crucial part of the employment process for all employers, especially for those hiring skilled workers and visa holders. The following provides a detailed step-by-step guide to ensure compliance with the Home Office guidance.

Types of right to work checks

There are a few ways in which an employer can check the worker’s right to work. The process depends on the immigration status of the employee.

One type of check involves the employer conducting a manual check using original documents, in the presence of the document holder. This type of check can be conducted on employees of all nationalities but depends on the type of document the individual is relying on to establish their right to work.

For British and Irish employees, employers can also use an identification document validation technology identity check if they have signed up for this service with a reliable identity service provider.

Employers can also check a worker’s visa validity via the Home Office’s online checking service. This type of check must be completed for certain workers, as explained below.

In other circumstances, employers may be unable to use the online service and may instead need to use the Home Office’s employer checking service to establish a statutory excuse for employing the relevant individual.

Conducting a manual right to work check 

The basic process for manual checks includes several steps.

The employer should meet the individual in person or by video call and examine their original documents, which must be from either List A or B of the acceptable documents at Annex A of the employer’s guide to right to work checks. The documents will vary depending on the individual’s circumstances and can include a passport, birth certificate, certificate of naturalisation or registration as a British citizen.

The employer must check the documents are genuine and not tampered with and that the photograph matches the appearance of the person presenting the document. 

If the applicant is not a British or Irish citizen, employers will also need to check that:

• the dates for the applicant’s right to work in the UK have not expired
• the applicant has permission to do the type of work they are being employed to do (including any limit on the number of hours they can work, i.e. in case of student visa holders)
• for students the employer must also see evidence of their study and vacation times, as that will determine how many hours the student can work

Clear copies of the document(s) must be taken ensuring that the holder’s details as well as any expiry dates, biometric details and immigration permissions are included in the copy.

The employer should then clearly note the date when the check was carried out. This can be by either making a dated declaration on the copy or by holding a separate record, securely, which can be shown to the Home Office upon request. The employer must ensure copies are kept securely for the duration of employment and for two years after the worker leaves employment.

Using identification document validation technology via an identity service provider

An identification document validation technology identity check can only be used as a right to work check for British and Irish nationals who hold a valid passport (including Irish passport cards). The process includes obtaining evidence of the prospective employee’s identity, checking that it is valid and belongs to the person who is claiming it.

Identity service providers act on behalf of the employer to provide identity verification services using identification document validation technology.

The right to work confirmed by using the identity service provider will provide employer with a continuous statutory excuse. It is the employer’s responsibility to obtain evidence of the identification document validation technology check from the identity service provider and the employer will only have a statutory excuse if they reasonably believe that the identity service provider has carried out their checks in accordance with the Home Office guidance.

Conducting a Home Office online right to work check

Since 6 April 2022 employers must perform an online check where the individual holds a biometric residence card, a biometric residence permit or a frontier worker permit; the physical documents can no longer be used as evidence of right to work.

Employers must ask their employees to provide them with a share code. That share code should be used to complete the right to work check online.

The Home Office online right to work checking service includes the following steps:

1. Obtain the applicant’s share code.
2. Use the code and the individual’s date of birth to verify their right to work status through the online system.
3. Check the result of the online check and the details given on the profile page generated.
4. Ensure that the photograph on the online right to work check is of the individual presenting themselves for work.
5. Retain a copy of the generated document and any notes from the check securely (electronically or in hardcopy), as evidence that the check was completed, for the duration of employment and for two years afterwards.

When to contact the Home Office employer checking service to verify a right to work

Employers must ask the Home Office to check the worker’s status though the employer checking service if the worker cannot provide evidence of a valid visa or a share code. This may be because the worker:

• has an outstanding appeal, review or application with the Home Office; or
• arrived in the UK before 1988 and do not have documents to prove their immigration status or right to work; or
• has a digital or non-digital certificate of application or an application registration card.

When using this service, the employer will need to provide the worker’s personal details and the Home Office reference number or case ID, if available. The employer will also need to see the worker’s original application registration card or certificate of application, if this is what they are checking.

If the employee has the right to work, the Home Office will issue a positive verification notice to confirm that the worker has the right to work, which will give the employer the statutory excuse for a limited period of time. The employer must keep this document as a statutory excuse in the event they are found to be employing illegal workers.

The follow-up check must be carried out before the statutory excuse given by the positive verification notice expires. Provided the employer has obtained a positive verification notice from the employer checking service, they will continue to have a statutory excuse for the duration stated in the positive verification notice unless they become aware that the worker is working illegally within that six-month period and continue to employ them nevertheless.

When to conduct follow-up right to work checks

Where a worker has a time-limited right to work and they are going to continue working in their job the employers will need to conduct a follow-up check.

Employers should ensure that they keep track of visa expiry dates and schedule reminders for follow-up checks if required. Employers should perform the follow-up right to work check on or before the date the worker’s permission comes to an end.

If an employee is unable to provide evidence that they have continuing permission to work when the employer conducts a follow-up right to work check, this may not necessarily mean that they no longer have the right to work. If the worker has submitted an in-time application to extend their visa, they will benefit from section 3C leave while their application is being considered and can continue working for their employer.

Employers should provide their employee with reasonable opportunity to prove that they continue to have a right to work. If they are unable to confirm the employee’s right to work by using a share code or manually using original, hard-copy documents, the employer can contact the employer checking service to verify their right to work.

Conclusion

Conducting a thorough right to work check for all workers, including visa holders is essential for compliance with UK immigration laws. The recent data on Home Office compliance shows there has been a significant increase in sponsor licence suspensions and revocations compared to previous years, which employers should note. By ensuring that the right to work checks are done in time and correctly, employers can protect their businesses from potential penalties and ensure that they are hiring legally eligible workers.