What is the right to work?

13 March 2020

As an employer, you have a legal duty to prevent the illegal working of foreign nationals in the UK. If you don’t, you may face penalties.

Under right to work legislation, you may be liable to a civil fine of up to £20,000 per illegal worker. That’s if you can’t demonstrate you carried out the appropriate right to work checks and didn’t know—at any time—that the individual didn’t have this right.

It’s essential to get this part of employment law correct. If you deliberately employ someone illegally, you may even face criminal charges. Call us on 0800 028 2420 for immediate assistance.

You can also read this guide for important details on which employees can work for your business.

Right to work legislation in the UK

In the UK, you must (by law) check all employees have the right to work in the UK. You can find these laws under the Immigration, Asylum and Nationality Act 2006.

The type of documents you have to check will depend on the type of employee you’re hiring. But common examples include:

  • Biometric residence permits.
  • National identity card.
  • A full birth certificate.
  • Certificate of naturalisation.
  • Passport with a valid visa.

You should be wary of false documents during your background checks.

For a home office right to work check, you can refer to the government’s employer’s guide.

Right to work procedures

You should familiarise yourself with appropriate procedures. Currently, individuals from EU states, the European Economic Area (EEA), and Switzerland have the right to live and work in the UK without the need for permission.

For those outside of these areas, workers need to meet the requirements of the points-based tier system.

Laws on asylum seekers’ right to work also require individuals in this situation to be granted permission.

From 1st January 2021, you can expect new immigration laws to come into effect due to the end of free movement between the EU and the UK.

This’ll mean EU and EEA nationals will no longer have the automatic right to work in the UK and will also fall under a points-based system.

EU nationals already in the country will be able to live and work in the UK indefinitely if they receive settled status under the EU Settlement Scheme.

Applications for which will be open until 30th June 2021 for those in the UK by 31st December 2020.

What is the right to work document check?

Since this scheme has been in place, the requirement for you is to carry out mandatory checks on right to work documents. UK law dictates these fall into two categories:

  1. List A: These documents are available to individuals who have a permanent right to work in the UK, such as a UK or EU citizen, and will not require any additional follow up checks.
  2. List B: These documents are for those who only have a temporary or time-limited right to work in the UK, meaning follow-up checks will be required and potentially leading to additional right to work checks on existing employees.

When checking documents, you need to confirm they’re authentic, valid, and the individual is the person named within the documents.

You must make a copy of the documents. Keep them for the duration of the individual’s employment and the following two years. This can be an administrative burden on your business.

So, to establish a foreign worker has the right to work in the UK, it’s highly advisable to establish proof of right to work in UK through the home office.  

Online Home Office right to work check

From 29th January 2019, you can use the Home Office’s right to work checking portal on gov.uk to carry out an online right to work check.

In this way, they can seek to establish evidence of right to work in the UK without carrying out documentary checks.

Currently, online right to work checks can only be used for prospective employees who have:

  1. A biometric residence permit.
  2. A biometric residence card.
  3. Status issued under the EU Settlement Scheme.

Any prospective employee who does not fall within these categories will need to have a documentary check carried out.

To use this system in order to view a job applicant’s right to work details, the prospective employee will first need to access the service and generate a right to work share code.

You then input this code, alongside the individual’s date of birth, to receive a right to work check.

The information presented should be double-checked by yourself. Retain evidence for the usual length of time.

Right to work checklist

You can establish this from the Home Office right to work checklist. You must obtain original documents for these checks.

As we mention above, there are two categories for this. List A will require:

  • A passport that displays the holder’s image and name—and whether they’re a British citizen or a citizen of the UK and/or colonies.
  • Whether the person has the right to live in the UK.
  • A passport or national identity card showing the holder.
  • Registration certificate (or document certifying permanent residence) from the Home Office.
  • Permanent Residence Card from the Home Office.
  • A current Biometric Immigration Document from the Home Office.
  • A current passport that displays the holder is exempt from immigration control.
  • Birth or adoption certificate issued in the Channel Islands, Isle of Man, or Ireland. Along with an official document with the National Insurance number.
  • Certification of naturalisation as a British citizen, with an official document with the individual’s National Insurance number.

Meanwhile, List B (Group 1) will need a:

  • Current passport.
  • Current Biometric Immigration Document from the Home Office.
  • Current Residence Card from the Home Office.
  • Current Immigration Status Document with a photograph from the Home Office. Along with an official document with a National Insurance number.

There’s also List B (Group 2) checks for:

As part of your checklist, you should ensure the documents are authentic and the individual presenting them is the prospective employee.

There are checks you can take to ensure this, including:

  • Making sure the photographs are consistent across documents.
  • Consistency with date of birth.
  • Are expiry dates still valid? As in, they haven’t already expired?
  • Is the individual able to do the type of work you require?
  • Verify the reasons for different names across documents.

You should make sure you’re satisfied all documents are genuine before making any further steps.

Again, if it transpires the individual’s documents aren’t accurate or genuine, this can lead to serious consequences.

Final copies

You should make clear copies of every document you receive. Do so in a format you can’t alter at a later date.

You should also store this information securely, in electronic or hardcopy form. Keep copies (and retain) the following:

  • All other documents, including both sides of a Biometric Residence Permit.

Finally, make sure you record (and retain) the date on which you performed these tasks.

Need our help?

We can help with employee right to work checks—get in touch for immediate assistance: 0800 028 2420.

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