Right to Work Check

As an employer, it is your legal responsibility to make sure that all your workers have the legal right to be employed in the UK. Fail to do so, and you could face hefty fines and legal penalties.

Under the current UK right-to-work legislation, you could be liable to civil fines and serious reputational damages. That's why it's essential that you check a job applicant's right to work in the UK before you employ them.

In this guide, we will look at how to carry out a right to work check, when they need to be carried out and an employer's responsibility.

UK right-to-workright-to-work legislation

In the UK, employers are legally required to check that all employees have the right to work in this country. 

The type of documents that you will need to check will depend on certain circumstances. Such as the role and the job applicant's immigration status.

Current government guidance on right to work checks states that there are currently three main ways to check the documentation of a potential employee. These incluright-to-work

• Manual right to work check. 
• Digital right-to-work check.
• Online right-to-work check.

What is a manual right-to-work check

This requires employers to meet with prospective employees face-to-face. Here they can check that they have all the acceptable documents to work in the UK, in person.

These are usually done when an online check is not possible. 

What are classed as acceptable documents?

The type of acceptable documents that you can ask for depends on the potential employee’s immigration status.

The Home Office currently has two categories that employees can fall into:

• List A: This is for any individual that has a permanent right to work in the UK. This includes British passport holders, holders of Indefinite Leave to Remain (ILT), anyone with a Biometric residence card (BRP), and those with settled status under the EU settlement scheme.
• List B: This is for individuals who have temporary or time-limited permission to work in the UK. This group will require a follow up check to ensure that all their documentation is still valid

List A

If an employee has a British passport you must copy and retain the details as proof of a lawful right to work.

Expired passports can be accepted. This is as long as you are satisfied that the photo is clearly the person presenting the document.

If the individual holds an ILR or Biometric Residence Permit, then they will need to present these as evidence. You can no longer directly accept physical copies of biometric residence permits or cards. Instead, ask the applicant for a share code.

EU and Swiss nationals with settled or pre-settled status must evidence this through the Home office online system. Existing employees do not need to complete these checks if they started employment before 1st July 2021.

List B

List B is for those whose permission to work in the UK is time limited. This can present additional risks due to the time-limited nature of their work permit.

To ensure that you are legally compliant, you must hold a copy of an employee's right-to-work evidence on file.

If your employees are visa holders, you must perform follow up checks when a visa or work permit expires. This is to check that their documentation is still in date and that nothing has passed its expiry date.

Alongside the above documents, employers may also need to retain the following:

• A Positive Verification Note issued by UK Visa and Immigration.
• A Certificate of Application to a non-EEA family member or EEA national / Switzerland that is less than 6 months old. 
• An Application Registration Card permitting employment in question.

What is a digital right-to-work check

Employers can conduct remote digital identity checks through an identity service provider. These providers check these documents for you via Identity Document Validation technology (IDVT).

They can be used for right-to-work checks for British and Irish citizens who hold a valid UK or Irish passport card.

Employer's responsibility following a digital check

Following a digital check, the employer must carry out a visual follow up check. This can be done when the applicant first reports to work. A follow up check is done to make sure that you are satisfied that the job applicant's physical appearance matches the details on the documents they have provided.

It's important that you do not discriminate against individuals who don’t want to complete a digital check. This means that you cannot make digital checks mandatory for everyone applying to your business. If a digital check is not possible for any reason, then employers must conduct a manual document check instead.

Online right-to-work check

Employers can choose to use Online checking services over a manual or digital check where possible.

An online check can be used to verify an employee's right to work in the UK. They can be carried out if an employee has the following documentation:

• A biometric residence permit.
• A biometric residence card.
• Working visas.
• Pre-settled or settled status under the EU settlement scheme 
• A Frontier worker permit

Biometric residence cards and permits and frontier worker permits must be checked by the Home Office online service. Employers are no longer allowed to accept physical copies as evidence of the right to work.

What if an applicant cannot show their documents?

There may be some circumstances where applicants can't source original documents. This could be because:

• They have an outstanding appeal, review or application with the Home Office.
• They arrived in the UK before 1989 so they don't have access to documents that prove their immigration status or right to work.

If the potential employee has a digital or non-digital Certificate of Application or an Application Registration Card (ARC), then you must ask the Home Office to check their status. This is done through the Employer Checking Service.

What is the Employer Checking Service?

The Employer Checking Service (ECS) is a free online service available from the Home Office. It allows employers to conduct a right to work check on individuals unable to provide the documentation for manual checks.

ARCs must state whether the work the employee is offering is permitted under their immigration rules. If not then it will be considered illegal work. If the applicant does have the right to work in the UK, then the Home Office will send you a 'Positive verification notice'. This must be kept on file for future reference.

What do you need to check on right-to-work documents?

When checking right-to-work documents you need to confirm that they are authentic and valid. You must also check:

• That the documents are genuine and the original copies. 
• That they have not been tampered with or changed in any unauthorised way. 
• That they are not expired (unless this is permitted e.g passports). 
• That the photos and dates of birth are consistent.
• That the applicant has permission to do the type of work you're offering e.g they can work the required hours etc.

If two documents give different names, the applicant must show supporting documents that explain the discrepancy. For example, an original marriage certificate, adoption certificate, or divorce decree absolute.

If an applicant has a student visa, you must check that it contains evidence of their study and vacation times. For example, a place of study.

Dealing with false documentation

You are responsible for checking all work documents. While you can delegate the task, you will remain liable for any penalties if an employee is found to be an illegal worker.

If someone gives you a false document or a genuine one that does not belong to them, you should report the individual to your internal HR department immediately. Your HR department will then need to contact UK Visas and Immigration who will continue with the claim.

You are only liable for a civil penalty if it's 'reasonably apparent that the document is fake.

If you fail to report or notice that a document is fake, you may be liable to penalties. You will not obtain a statutory excuse if:

• It is reasonably apparent that the person presenting the document is not the original holder.
• You fail to notice that the document has passed its expiry date. 
• You know that the individual is not permitted to undertake the work that you require.

Should you retain copies of documents?

You must retain copies of all the documents that you check. This can be either a hard copy or a scanned version.

You must retain details of all work two years after employment ends. You may be asked to produce any documents that you check at short notice. So, you must have them somewhere that is easily accessible to you.

This is to demonstrate that you have performed a right to work check and can retain a statutory excuse. You must also keep a note of when you conducted the check. The date of your check can be written on the document copy as follows: ‘The date on which this right to work check was made: [insert date]’.

This process must be repeated after any follow up checks. Failure to do so could result in a civil penalty,with heavy fines to pay.

End of Covid-adjusted Right to Work checks

The Covid-adjusted right-to-work check scheme ended on the 30th of September 2022. The Home Office temporarily introduced the scheme in March 2020 The aim of this was to allow employers to check work documents while abiding by lockdown rules.

When the scheme was open, employers could check documents remotely via a video call. Documents could also be submitted electronically as a photo or scanned copy. All checks made under this temporary scheme had to be marked as an "adjusted check undertaken on [insert date] due to COVID-19”.

Employers are not required to redo any checks that were made when these measures were in place. If an organisation faces any illegal working allegations, they won't be liable as long as they can prove that the check was done in line with government Covid guidelines. However, if the claims turn out to be true they could still face legal action.

Get help with your right-to-work checks

Right-to-work checks can be tricky to manage. Making sure that you have all the correct documentation and checks in place can quickly become complicated.

Any mistakes could result in serious legal consequences. That's why you need to know all the steps you must take to put a stop to illegal working in your business.

Peninsula's team of documentation experts can help you manage every step of your right-to-work checks. We provide you with 24/7 HR advice and support, so you can focus on what matters most to your business. Contact us on 0800 029 4384