Right to Work Checks Guidance

Under UK law, employers found to be employing individuals who do not have appropriate immigration permission to work can face tough sanctions. Employers can protect themselves by carrying out compliant right to work checks.

Under the prevention of illegal working legislation, an employer will be excused from paying a civil penalty if they can demonstrate that they have carried out a compliant right to work check in accordance with Home Office guidance. This is known as establishing a ‘statutory excuse’.

Manual right to work checks: What is required?
A manual right to work check consists of the following three basic steps:

1. obtain original versions of the acceptable documents from the prospective employee;
2. check that the documents are valid whilst the employee is present; and
3. make and retain copies of the documents along with a record of the date on which the check was made.

Step one: Obtain
The employer should always obtain original documents from a prospective employee before they commence employment. If the individual is a current employee who holds limited leave to remain, then the necessary right to work checks should be completed before their current leave expires.

The documents that the Home Office deems acceptable as proof of an individual’s right to work are laid out in List A and List B which can be found here.

If an employer is to successfully establish a statutory excuse, they must ensure that the prospective employee presents the original documents in person. Photocopies or electronic copies will not suffice as evidence of their right to work.

Step two: Check
In order to properly perform the right to work check, the employer will then need to check that the documents provided are valid. This will include checking whether the features of the document are in line with those described in List A and List B.

List A and List B refer to particular features of the document that need to be present in order for the document to be valid. For example, an endorsement demonstrating that the worker is allowed to stay in the UK indefinitely must be contained within a current passport. Therefore, Indefinite Leave to Remain vignettes contained in passports that have expired are no longer acceptable as evidence of right to work in the UK and as such would not allow the employer to establish a statutory excuse.

An employer should also examine the document in the presence of the employee to ensure that it is genuine. The Home Office expects an employer to be able to identify and subsequently reject any documents where it is ‘reasonably apparent’ that the documents are not genuine or do not belong to the holder. This can be done by ensuring that all photographs and personal details such as date of birth and signatures match those of the employee.

Step three: Make and retain copies
Once the employer has confirmed the validity of the documents, either an electronic or hardcopy of the document should be taken. The employer should also make a record of the date on which the check was conducted. This can be done by making a declaration on the hardcopy of the document or creating a separate record elsewhere.

Evidence of the right to work check should then be retained for the duration of the individual’s employment plus a further two years after the employment ends.

Further checks will need to be performed in relation to individuals who are subject to immigration control and who have temporary leave to remain before their leave expires.

For those employers holding a sponsor licence, it is a sponsor duty to carry out right to work checks and help prevent abuse of the immigration system. Breaches can therefore lead to sponsor licence enforcement action.

Online right to work checks
An online right to work check must be performed in order to establish a statutory defence in relation to anyone holding:

a Biometric Residence Card;
a Biometric Residence Permit; and
a Frontier Worker Permit.

The individual must provide the employer with a share code. The employer then accesses the online service to conduct the check. They must see the individual which can be in person or via video to ensure the image online relates to the individual. They must then retain evidence.

Identity Service Provider
Finally, employers can also choose to use an IDSP to complete the digital identity verification part of the right to work check for British and Irish citizens.

Full details are contained in the Home Office guidance.

Employees without acceptable documents
It is the responsibility of the employee to provide acceptable documents as evidence of their right to work in the UK. If a current employee has made an application for further leave to remain or has an appeal pending with the Home Office, employers can use the Employer Checking Service to confirm whether the individual has the right to work in the UK.

If an existing employee cannot provide acceptable evidence of their right to work in the UK, it is important that employers exercise caution before taking any action in relation to the employment. Recent case law has highlighted that a dismissal on the grounds of illegality as a result of the failure of an employee to produce evidence of their right to work may be unfair. In each case, the circumstances must be carefully reviewed.

How we can help
We are able to provide legal advice and guidance in relation to the right to work legislation to ensure that employers are taking the steps needed to establish and maintain a statutory excuse. We also provide advice on specific complex scenarios.

If your organisation requires legal assistance, or if you would just like to discuss your situation with one of our experts on a no-obligation basis, please contact us.