Importantly, as part of your pre-employment checks, the checks must be carried out universally on all prospective employees, regardless of nationality, race, or ethnicity. Singling out certain groups of individuals could lead to complaints of unlawful discrimination.
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 carrying out Right to Work document 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.
It is good risk management practice to ensure any Right to Work processes you have in place are compliant and implemented consistently and correctly. 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.
‘Prevention of illegal working’ refers to the duty on an employer to ensure that anyone they employ is not disqualified from working in the UK, or carrying out the work in question, by reason of their immigration status.
This means that employers have a responsibility to prevent illegal working by conducting a right to work check on all prospective employees before employing them, even if they claim to be UK nationals, as well as carrying out checks on existing employees whose right to work in the UK is time-limited.
Where an employer is found to have employed someone who, by reason of their immigration status, is prohibited from legally working in the UK or undertaking the work in question, they may be liable to pay a civil penalty and face criminal prosecution.
Where a right to work check has been carried out, and provided this is done in the correct way, an employer will be able to establish a statutory excuse to defend against any civil liability, even if someone is found to have been working illegally for them. If the prescribed check is not carried out correctly, you will remain liable for the civil penalty in the event that any employee is found to be working illegally.
The responsibility for carrying out a right to work check rests with the employer, even where the check has been delegated to other colleagues across the company.
Further, you may not delegate this responsibility to a third party. This means that whilst you can use a third party to provide technical support or specialised equipment in the prevention of illegal working, you will not be able to establish a statutory excuse if the check is performed, for example, by a recruitment agency and you accept this without conducting your own checks.
As such, as well as developing an effective internal process for checking workers’ right to work, right to work training of all personnel involved in your organisation’s recruitment and onboarding activity is critical.
Employers, as well as any employees with delegated responsibility within the business for the recruitment and employment of individuals, must fully understand their responsibility to carry out right to work checks in the prescribed manner, and therefore ensure compliance with the law.
To comply with the prevention of illegal working regime, you should always conduct a right to work check before you employ a person to ensure they are legally allowed to do the work in question for you. If an individual’s right to work is time-limited at the point that you employ them, you should also carry out a follow-up check shortly before this right is due to come to an end.
There are four different ways to conduct right to work checks; by correctly conducting either type of check, this will provide you with a statutory excuse to avoid any civil liability:
- Manual Right to Work checks: the employer meets the individual face to face and check a physical copy of their acceptable documentation.
- Employer Checking Service: a free online service from the Home Office for cases where the individual is unable to use online checks or provide acceptable documentation for manual checks.
- Digital Right to Work checks: the employer uses Identity Document Validation Technology (IDVT) through the use of an IDSP for checks on British and Irish citizens that are beyond the scope of the Home Office online service.
- Online Right to Work checks: the employee provides a share code to the employer to conduct an online check instead of conducting a manual document check to verify permission to work where the individual has:
- A biometric residence permit or
- Biometric residence card or
- Pre-settled or settled status under the EU Settlement Scheme or
- Frontier worker permit
Please note, where someone gives a share code, you are still required to verify the individual on the right to work check is the person you are expecting to employ.
Employers commonly have questions about the rights and status of EU workers following the end of EU freedom of movement and the introduction of a new points-based immigration system.
EU nationals who were already in the UK by 31 December 2020 are able to remain in the UK with lawful status, provided they secured their status under the EU Settlement Scheme for settled or pre-settled status. This status can be proven using a share code and conducing an online right to work check.
EU nationals arriving into the UK for work from 1 January 2021 must apply to the Home Office for a work visa, and their status must be evidenced within the right to work check.
There are three basic steps to conducting a manual Right to Work check:
- Obtain original versions of one or more acceptable documents from the prospective or existing employee.
- Check the document’s validity in the presence of the holder.
- Make and retain a clear copy, and record the date the check was made.
The documents you may accept from someone to demonstrate their Right to Work are set out in two prescribed lists: List A and List B.
List A contains the range of documents you may accept from a person who has a permanent Right to Work in the UK, for example, a British passport. In contrast, List B contains documents for those with a temporary Right to Work in the UK, for example, a biometric residence permit that indicates that they can currently stay in the UK and are allowed to do the work in question.
Where you correctly conduct a Right to Work check before employment begins by relying on relevant List A documents, you can rely on a continuous statutory excuse relating to that individual’s Right to Work for the duration of their employment with your organisation.
This means no further checks will need to be conducted on this individual while they remain employed by you.
However, when relying on documents from List B, you will only establish a time-limited statutory excuse and will need to conduct a follow-up check in order to retain protection against civil liability.
In either case, you must check that the documents are genuine and that the person presenting them is the rightful holder. You must also make a clear copy of each document in a format that cannot manually be altered and retain the copy securely. You should keep the copies for the duration of the employment, and for a further two years after, with a note of the date when you conducted the check.
In certain circumstances employers may be able to conduct free online checks. The Home Office’s online checking service is designed to make it easier and quicker for employers to carry out the necessary checks, providing access to up-to-date and real-time information about a migrants’ right to work.
It also provides greater security, as you no longer need to rely on physical documents when checking a migrants’ immigration status, reducing the risk of forged documents being presented to you and exposing you to liability.
It will not be possible to conduct an online Right to Work check in all circumstances. This will depend on whether an individual has an immigration status that can be checked online. Currently, the online service supports checks in respect of non-EEA nationals who hold current biometric residence permits or biometric residence cards, and for EEA nationals who have been granted status under the EU Settlement Scheme.
To use the online checking service, you will need to obtain the employee’s permission to request the check. If an individual does not wish to prove their right to work using the online service, even if their immigration status or documentation is compatible, you should conduct a manual check instead.
The online service works on the basis of the individual accessing their right to work record held with the Home Office. They may then share this information with you by providing you with a ‘share code’ generated by this service.
It is not sufficient to view the individual’s profile in the migrant part of the checking service, where the Home Office has an audit record of online checks conducted by employers. To obtain a statutory excuse you must access the service using the employer section entitled: ‘View a job applicant’s right to work details’ available on gov.uk.
There are three basic steps to conducting an online Right to Work check:
- View the individual’s right to work details by typing in the share code, together with their date of birth
- Check that the photograph on the online right to work check is of the individual presenting themselves for work
- Retain a clear copy of the response provided by the online right to work checking service
You must retain the profile page confirming the individual’s right to work. This is the page that includes the individual’s photo and date on which the check was conducted. You can print the profile or save it as a PDF or HTML file. You should store this securely, either electronically or in hard copy format, for the duration of the employment and for two years after this ends.
It is important to bear in mind that if you employ someone following an online check, but it is reasonably apparent from the photograph that the individual working is not the individual to whom the information provided in the check relates, you may still face a civil penalty in the event of illegal working.
The temporary COVID-adjusted right to work scheme ended on 30 September 2022.
It allowed to conduct Right to Work checks remotely and for documents to be submitted to the employer electronically, as a photocopy or photograph of the original document, which the employer would check against the individual via a live video link.
There is no requirement on employers to conduct full or corrected checks retrospectively where a COVID-adjusted check had been used.
As the scheme is now closed, employers are required to conduct full document checks in line with one of the four prescribed manners.
In certain circumstances, the individual may not be able to provide the required documentation, for example, if the documents are with the Home Office for a pending application. In such cases, you will need to contact the Home Office’s Employer Checking Service to establish a statutory excuse.
You must ask the Home Office to check the immigration status of a prospective or existing employee in any of the following circumstances:
- The individual cannot show you their documents because of an outstanding appeal, review or application with the Home Office
- The individual has an Application Registration Card
- The individual has a Certificate of Application less than 6 months old
- The employee is a Commonwealth citizen who started living in the UK prior to 1988
In any of these circumstances, you will only establish a statutory excuse if you are issued with a Positive Verification Notice from the Home Office confirming that the named person is allowed to carry out the type of work in question.
Since April 2022, employers have been required to conduct online checks for new employees who are Biometric Residence Card (BRC), Biometric Residence Permit (BRP) or Frontier Worker Permit (FWP)holders, as employers are no longer be able to 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.
If you are found to be in breach of the prevention of illegal working rules, you may be facing a civil penalty per breach. The level of fines for illegal working have increased in 2024 to £45,000 per illegal worker for a first breach, and up to £60,000 for repeat breaches.
There is also a range of additional sanctions that may arise from this:
- Disqualification as a director
- Seizure of earnings made as a result of illegal working
- Closure of your business and a compliance order issued by the court
- A review and possible revocation of your sponsor licence, affecting your ability to sponsor migrants who come to the UK in the future
- A review and possible revocation of a licence in the alcohol and late night refreshment sector and the private hire vehicle and taxi sector
If you know that you are employing someone who is not allowed to carry out the work in question, you will not have a statutory excuse against liability for a civil penalty, regardless of whether you have conducted a right to work check.
Where you know or have reasonable cause to believe an individual does not have the right to work and employ them anyway, you also risk criminal prosecution punishable by imprisonment for up to 5 years and an unlimited fine.
Depending on the worker's immigration status, they may be required to either provide certain types of acceptable documentation, such as a valid passport, or their employer may have to use online checks to verify their eligibility to work.
If you are found to be employing someone illegally in the UK, unless you can show that you have carried out a right to work check in the prescribed manner you may be liable to a civil penalty of up to £20,000 per illegal worker. The level of fine is increasing in 2024 to £45,000 per illegal worker for a first breach and up to £60,000 for repeat breaches.
A right to work check can be carried out in one of four ways, depending largely on the individual's circumstances. These include manual document checks, online checks, digital checks and using the Employer Checking Service.
Take advice on the circumstances as an expired passport may be able to be used as proof of the right to work in the UK in limited circumstances, for example, a British passport, provided the passport photo is not too dated and it resembles the person in question. In most cases, however, the passport would need to be current.
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 advice should be sought.
