As a UK employer, you are required by law to check and record the immigration status of every employee, in order to verify they have the Right to Work in the UK.
Put simply, your organisation must have in place appropriate HR systems to check and record your employees’ immigration and working status in line with the Home Office Right to Work guidance.
Each individual must prove their Right to Work before they start employment. Employers must perform appropriate checks on all employees – this includes British nationals, EU citizens and non-EEA nationals, before they commence employment to verify their permission to undertake the work in question – whether they will be working on a permanent or temporary basis. If an individual has temporary permission to work in the UK, you are required to carry out follow up checks to verify their continued Right to Work.
Under the Home Office’s Right to Work guidance, there are a number of ways to check someone’s eligibility to work, including manual document checks, digital checks and checks using the Home Office Employer Checking Service.
In this guide, we focus on manual document checks and the documents that are acceptable to evidence the right to work.
Right to work guidance has been subject to significant change in recent years, in light of changes to EU workers’ rights in the UK and as the Home Office pursues its digitisation strategy. This presents compliance risks for employers who may be conducting checks through onboarding processes that had previously been compliant under old rules, but fall short of new requirements.
Since 6 April 2022, employers can only verify the right to work status of Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) holders using the Home Office online service. Physical BRPs, BRCs, and FWPs are no longer be acceptable as proof of right to work for these individuals, even if the document has a later expiration date.
Failure to carry out the necessary checks and to maintain adequate records can result in enforcement action against the employer. Failure to meet these duties could open your organisation up to a Home Office civil penalty for illegal employment. From 22 January 2024, civil penalties are increasing to £45,000 per illegal worker for a first breach, and up to £60,000 for repeat breaches. You also risk criminal sanctions, among other ramifications.
Your organisation should be able to defend any allegations by the Home Office that an individual is being employed illegally if you can show you have met the prescribed compliance duties. The type of defence (also called the ‘statutory excuse’) available to you will depend on the circumstances, and you are advised to take professional guidance on your options if you are facing a civil penalty for illegal employment.
There are a number of ways employers may discharge their duty to prevent illegal working:
The Home Office’s online service allows eligible migrant workers to provide their employer with a share code which is then used to view their right to work in the UK. The online service operates on the basis of the migrant worker first accessing their own Home Office right to work record, where they can then share this information with someone else, including their employer, using a code generated giving you permission to view their status.
Under current rules, the online service is only available where the individual:
Another potential option is for employers to use digital right to work checks. Using Identity Document Validation Technology (IDVT) through the use of an IDSP, employers can carry out checks on British and Irish citizens that are beyond the scope of the Home Office online service.
In some cases, the employer may have to use the Employer Checking Service (ECS). The ECS is a free online service from the Home Office that allows employers to meet their duty to conduct Right to Work checks on employees in circumstances when the individual is unable to use online checks or provide acceptable documentation for manual checks. This may be because they are awaiting a Home Office decision on a pending application, review or appeal, or if they came to the UK prior to 1989 and do not have official documents to prove their status.
Home Office guidance specifies three steps to conducting compliant manual document checks:
You can only accept documents from the Home Office’s List A, List B Group 1 or List B Group 2. The Home Office has three different categories of ‘acceptable’ documents which deal with different types of permission and working status:
After the initial pre-employment check, you will not be required to carry out any further Right to Work checks on this person, as your organisation will have a continuous statutory excuse for the full duration of the person’s employment with you.
You have a time-limited statutory excuse which expires when the person’s permission to be in the UK expires. You should carry out a follow-up check when the document evidencing their permission to work expires.
You have a time-limited statutory excuse which expires 6 months from the date specified in your Positive Verification Notice. This means that you should carry out follow up checks before this notice expires.
You must check that the documents are genuine and that the person presenting them is the prospective employee or employee, the rightful holder and allowed to do the type of work you are offering.
You then have to make a formal record of the documents you have checked.
Each document has to be copied at the time the check is made. The copy must be clear, and in a format which cannot be altered or edited at a later date.
You must also record the date the check was made.
The copy then has to be retained securely by your organisation, either electronically or in hardcopy:
This evidence must be retained for the duration of the individual’s employment and for a further two years after they stop working for your organisation.
Home Office guidance requires individuals to provide documents from the relevant list to prove their right to work.
The rules on document checks for EU nationals in the UK changed from 1 July 2021. EU nationals can no longer rely on their passport or residence card as proof of their Right to Work. Instead, they must now provide proof of their immigration status, such as having pre settled status, EU settled status or a Skilled Worker visa.
The documents that you are to check and copy must be from:
Where an individual presents documents from List A, no further document checks will be required during the course of their employment with your organisation.
Repeat checks are however required if the individual has presented documents from List B, ie where there is a time limitation or restriction on their right to work. Document checks must be carried out every 12 months (at least) take place or on expiry of the individual’s visa, whichever is sooner.
Where the employee presents a document from List A during a repeat check, then no further checks will be required during the course of their employment.
Guidance issued in November 2022 by the Home Office reiterates that right to work checks should be carried out when a sponsored worker begins a new role, even where the role is for the same sponsor. The check should be conducted after the UKVI application has been approved.
If during a repeat check you become aware that an employee no longer has the Right to Work, or that they are in breach or excess of their permission by being employed by you (e.g. number of working hours) and you continue to employ that person, you become liable for a civil penalty and the criminal offence of knowingly employing an illegal worker.
It is best to seek advice as soon as you become aware of an employee’s loss of permission before taking action. Instant dismissal of an employee who no longer has the Right to Work can in some cases give rise to employment law issues, such as unfair dismissal or discrimination claims.
Take advice on the circumstances to ensure you remain compliant with your duties.
Employers are advised to take professional guidance to ensure their right to work checks are compliant under the relevant rules, to ensure the statutory excuse is available in the event of any allegations of illegal working.
The duties imposed on employers by the prevention of illegal working regime are onerous. We have seen all too many instances where, even with robust pre-employment and onboarding processes in place, employers have fallen foul of the rules.
For example, where an employee loses their Right to Work, what are your next steps? Discrimination risks abound, and you are expected to approach such situations in a fair and reasonable manner.
Also, list B employees with time-limited permission to work present a risk since there is a requirement on you to carry out repeat checks.
Your HR processes and Right to Work checklist should be sufficient in scope and quality to provide guidance where such issues arise. Seeking legal advice can also assist where you have concerns.
DavidsonMorris are specialist business immigration legal advisers, working with UK employers to ensure compliance with their duties to prevent illegal working. We offer a range of Right to Work solutions for employers, including:
If you have a question about any aspect of Right to Work compliance, contact us for assistance.
You will need to check that the person in the photograph is the person applying for the role. You have to keep a copy of the online check response for your records and as proof of the individual's Right to Work. If follow up checks are required, these should be scheduled and actioned in good time.
If the employee cannot provide the required documents, you will have to contact the Home Office to verify the individual's immigration status. A Positive Verification Notice will be issued if the individual has the Right to Work, while a Negative Verification Notice confirms that the individual is ineligible to work in the UK.
Last updated: 8 November 2023
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
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Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.
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Legal Disclaimer
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 at the time of writing, 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 legal advice should be sought.
