Business immigration: getting right to work checks right

We consider an employer’s duty to conduct right to work checks and how to ensure these checks are carried out correctly

14 July 2022

Employers have a legal obligation to carry out right to work checks to ensure that their employees have the correct immigration permission to work in the UK. Although most employers now have a good understanding of how to carry out compliant checks, as an employer it is important that you keep up to date with changes to the Home Office guidance (which governs how these checks must be carried out) and make sure you know exactly what is required of you in this area. Failing to get it right can lead to costly fines and sanctions and impact your ability to sponsor overseas nationals.

In this article, we outline the main steps you need to take to ensure compliance with your obligations. However, you should always refer to the latest Home Office guidance to ensure that the checks you carry out are compliant.

Key legal requirements and risks

All employers have an obligation to prevent illegal working in the UK. To do this, you should carry out right to work checks on all employees before they start work. In addition, if an employee’s right to work is temporary (e.g. because they have a time-limited visa), you must conduct a further follow-up check shortly before their right to work is due to expire to ensure they have a new or extended right to work.

While the obligation to carry out right to work checks only applies to employees, given the risk that some workers may be deemed to be employees, we would typically suggest that you also carry out right to work checks on all workers to avoid inadvertently falling foul of the illegal working regime.

It is crucial to get these checks right as there can be serious consequences for employing individuals who do not have immigration permission:

Civil offence: it is a civil offence to unknowingly employ a person without the right to work, punishable by a fine of up to £20,000 per illegal employee. However, an employer will have a defence to the civil offence (known as a 'statutory excuse') if it can demonstrate it carried out a compliant right to work check before the person started employment.

Criminal offence: it is a criminal offence for an employer to employ a person who it knows, or has reasonable grounds to believe, has no right to work in the UK. There is no defence to the criminal offence. If found to have knowingly employed someone illegally, the company and any company officers at fault could face a criminal conviction which (in the case of individual company officers) carries a prison sentence of up to 5 years and (in the case of the company itself as well as individual officers) an unlimited fine.

Impact on sponsor licence and the business: the employment of illegal employees can lead to revocation of a sponsor licence, downgrading of a sponsor licence and (in the most serious cases, including where previous penalties and/or convictions have been issued and the employer has not changed its practices) closure of business premises for a period of time. Carrying out compliant right to work checks on all employees will help mitigate these risks.

How to conduct right to work checks

Right to work checks must always be carried out in accordance with the latest Home Office guidance, which can be found here (the 'Guidance').

There are three main ways to carry out a right to work check. These are:

1. manually, using physical documents;

2. online, using the Home Office’s online right to work check service (which can be found here); or

3. using Identity Document Validation Technology, through the services of an Identity Service Provider.

Not all of these options will be available in every case. We have set out a summary of each below, but we recommend you also read the Guidance for the full details.

1. Manual right to work checks

A manual check is a three-stage process, which consists of:

  • the individual providing you with one or more original documents from either List A or List B of the Guidance;
  • you checking that the documents are genuine, that they belong to the person presenting them and that they allow that person to do the work they are being employed to do; and
  • you making and retaining clear copies of the documents and recording the date when the check was carried out. 

2. Online right to work checks

Although it is anticipated that eventually all checks will need to be carried out online, not everyone will have an immigration status that can be checked online at the current time. Online checks can be carried out, and are currently mandatory, for individuals who hold one of the following:

  • a biometric residence card;
  • a biometric residence permit;
  • a frontier worker permit; or
  • an eVisa (issued to EU, EEA and Swiss nationals who hold settled or pre-settled status).

The online right to work check is a three-stage process which involves:

  • using a code provided by the individual (together with their date of birth) to access a ‘profile page’ on the Home Office online service. On the profile page, you will be able to view the individual’s right to work and their photograph;
  • checking that this profile page relates to the person presenting themselves for work; and
  • keeping appropriate records of the check, including a PDF of the profile page.

3. Using an Identity Service Provider ('IDSP')

As an alternative to doing a manual right to work check, you can choose to use the services of a certified IDSP to verify either a British or Irish national’s right to work, without the individual having to provide you with their original documents. IDSPs use identity document validation technology to verify an individual’s identity by searching and analysing digital records. A list of certified IDSPs is available here. Use of IDSPs is optional and will attract an additional cost in the form of the provider’s fee. If you decide not to use an IDSP, you can elect to continue performing manual document checks.

EU, EEA and Swiss nationals

Since 1 July 2021, EU, EEA and Swiss nationals are no longer able to prove their right to work using their passports and must have a form of immigration permission allowing them to work in the UK, in the same way as other overseas nationals. This may be in the form of settled or pre-settled status under the EU Settlement Scheme or under one of the UK’s other immigration routes. As noted above, online checks will be required for holders of settled or pre-settled status.

Evidence of right to work checks and record-keeping

Where you have carried out a manual right to work check, you must retain a copy of each employee’s documentation evidencing their right to work and a record of the date the check was carried out. Where a check has been conducted online, you must keep a record that it has been done by printing or saving a PDF copy of the relevant page. Evidence of right to work checks must be retained throughout the duration of the employee’s employment and for two years afterwards.

Timing of the right to work checks

Whilst right to work checks must be carried out before the employee commences work, it is usually best to conduct these as late in the recruitment process as possible to avoid job applicants arguing that any recruitment decisions have been based on their nationality or their immigration status.

What steps should you take?

You should:

  • familiarise yourself with the latest Guidance on right to work checks;
  • establish comprehensive and consistent right to work check procedures, ensuring relevant staff are appropriately trained in following the procedures; and
  • keep records of checks carried out for all employees and ensure the records are retained for two years post-employment.

We have advised many employers on their right to work check and prevention of illegal working procedures. If we can help your organisation review its procedures or provide further guidance on the issues detailed above, please contact Huw Cooke or Megan Summers (both Senior Associates in our Business Immigration team).

 

Disclaimer

This guide gives general information only and is not intended to be an exhaustive statement of the law. Although we have taken care over the information, you should not rely on it as legal advice. We do not accept any liability to anyone who does rely on its content.

Key contact

Huw Cooke

Huw Cooke Senior Associate

  • Employment
  • Business Immigration Services
  • Data Protection

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