If you are an employer in the UK, it is mandatory to carry out Right To Work checks on every employee to ensure compliance with Home Office legislation to prevent illegal working.
Prior to employing any individual, a Right To Work check must be undertaken whether they are UK citizens, from overseas, or free from immigration control.
If you employ or place an illegal worker and cannot prove you carried out the correct Right to Work background check, you could face a civil penalty.
In this article, we take a look at some handy tips that will help you to simplify and streamline the right to work checking process, ensuring that your business remains fully compliant.
The Type of Right to Work Checks are Required
There are three ways of checking an employee’s right to work: a physical check and an online check:
- A manual Right to Work check
- Using Identity Document Validation Technology (IDVT)
- A Home Office online check
A manual right to work check requires the employee to present original documents proving their right to work in the UK on or before the first day of their employment.
Employers must ensure that the information on the documents is accurate and free from tampering or falsification. Employers must also take a signed and dated copy of the documentation for their records. The lack of a date is the most common reason why right to work checks fail. This process is defined by three key steps: Obtain, Check and Copy.
At the time of writing, temporary concessions have been made due to the COVID-19 pandemic, however, these concessions cease on 30th September 2022. The concession allows employers to review some original right to work documents over a video call, to avoid an in-person check.
A right to work check using IDVT allows employers to verify the identity of a person, whereby a digital copy of a physical document relating to that person is produced for verification of the document’s validity, and check whether that person is the rightful holder of the document. This technology allows employers to complete the digital identity verification element of right to work checks for British and Irish citizens who hold a valid passport (including Irish passport cards).
Alternatively, a Home Office online right to work check allows employers to verify the immigration status and type of work an individual is permitted to carry out depending on the type of immigration documentation they are issued with. Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) holders are also only able to evidence their right to work using the Home Office online service. This system will issue the employee with a share code that can be passed on to an employer which, when entered alongside the individual’s date of birth, enables you to access the information on their working status.
Check Which Documents Are Acceptable
The type of documents that should be checked to ensure that an employee has the legal right to work in the UK vary depending on the nationality and immigration status of the employee.
| List A | List B Group 1 | List B Group 2 |
| A passport (current or expired) showing the holder is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK. | A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question. | A document issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules on or before 30 June 2021 together with a Positive Verification Notice from the Home Office Employer Checking Service. |
| A passport or passport card (in either case, whether current or expired) showing that the holder is an Irish citizen. | A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted limited leave to enter or remain under Appendix EU to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules. | A Certificate of Application (digital or non-digital) issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules (known as the EU Settlement Scheme), on or after 1 July 2021, together with a Positive Verification Notice from the Home Office Employer Checking Service. |
| A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted unlimited leave to enter or remain under Appendix EU to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules. | A current immigration status document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer. | A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man showing that the holder has made an application for leave to enter or remain under Appendix EU (J) to the Jersey Immigration Rules or Appendix EU to the immigration Rules (Bailiwick of Guernsey) Rules 2008, or Appendix EU to the Isle of Man Immigration Rules together with a Positive Verification Notice from the Home Office Employer Checking Service. |
| A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK. | An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service. | |
| A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer. | A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question. | |
| A birth or adoption certificate issued in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer. | ||
| A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer. | ||
| A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer. |
Source: Gov.uk
How Long Do You Need to Keep Records?
As part of the manual checking process, employers must make clear copies of documents in a format which cannot be altered and retain the copy securely.
All copies must be kept for the duration of the employee’s tenure and for two years afterwards. After this time, copies of documents must be securely destroyed.
You should also be able to produce these document copies quickly in the event that you are requested to demonstrate that you have performed a right to work check and retain a statutory excuse.
If using an IDVT to satisfy Right To Work legislation, employers must retain a clear copy of the IDVT identity check output for the duration of employment and for two years after the employment has come to an end.
Similarly, when conducting checks via the Home Office website, employers must retain evidence of the ‘profile’ page confirming the individual’s right to work. Again, this must be kept for the entirety of the worker’s employment and for two years afterwards.
What are the Penalties for Non-Compliance?
Knowingly employing illegal workers is a civil penalty and the consequences for non-compliance with right to work legislation are severe.
If found guilty of employing someone you knew or had cause to believe did not have the legal right to work in the UK, individuals risk spending five years in jail and having to pay an unlimited fine.
Additionally, if the correct checks are not undertaken, fines of up to £20,000 per illegal worker can be issued and your business’ details may be published by UK Immigration Enforcement as a warning to other businesses, causing serious damage to your reputation.
