It is incumbent upon all UK employers, irrespective of size or sector, to ensure that both prospective and existing employees are legally entitled to work in the UK.
The consequences of failing to carry out right to works checks, or to do so correctly, can have serious consequences for you individually, as well as your business. This includes tough civil and criminal sanctions, as well as potential disruption to your business by way of loss of individual staff or even a closure notice. It could also result in revocation of any licence to employ overseas workers, not to mention serious reputational damage.
Below we set out a guide for employers on how to carry out additional document checks so as to stay compliant.
What are right to work checks?
By law, you are required to meet your duties to prevent illegal working. This means performing prescribed document checks on all employees and new recruits, verifying their identity and eligibility to work in the UK and copy and retaining records of the documentation for up to two years after the end of the individual’s employment with your organisation.
Right to work checks require acceptable forms of documents to be provided by the individual as suitable proof of their permission to work in the UK.
For those employees who have time-limited permission to work in the UK, or to do the work in question, it is not enough to simply undertake a right to work check prior to the start of their employment. Repeat checks will be necessary.
Assumptions should never be made or relied on as to an individual’s entitlement to work in the UK or to do the work in question. As such, right to work checks should be conducted on all prospective employees – regardless of their race, ethnicity or nationality.
By carrying out a right to work check correctly In the event that an individual is found to be employed illegally, you may be able to rely on a statutory excuse to challenge any Home Office penalties if you can show the right to work checks were performed as required.
How do I carry out right to work checks?
There are multiple steps involved in correctly rechecking the status of an existing employee:
- OBTAIN, ie; obtain an original document, or combination of documents, in accordance with the Home Office approved list (additional rules apply to student workers).
- CHECK, ie; check the validity of that documentation in the presence of the holder.
- COPY, ie; make and securely retain a clear copy of the documentation electronically or in hardcopy. This should be in a format that cannot be manually altered, such as a jpeg/pdf document or photocopy.
- RECORD, ie; make a contemporaneous record of the date on which you conducted your check. This can be by either making a dated declaration on the copy itself or by holding a separate record. You should also keep a record of when any follow-up checks must be made.
When carrying out right to work checks, including repeat checks, you should retain your copies and records securely for the duration of the individual’s employment – and for a further two years after they leave. These may need to be shown to the Home Office upon request to establish your statutory excuse.
How do I check the validity of documents?
When checking the validity of the documentation provided, you must ensure that:
- the documentation is genuine, original and has not been tampered with.
- the person presenting the documentation is the rightful holder.
- the photographs and dates of birth are consistent across multiple documents and with the individual’s appearance.
- the expiry dates for permission to be in the UK have not passed and any work restrictions still permit the type of work, including any limit on the number of hours the individual is allowed to work.
- there is an explanation for any difference in names across multiple documents. You should seek further documentation to explain any differences, eg, an original marriage certificate or divorce decree. Any further documents must also be copied and retained.
When carrying out right to work checks, including repeat checks, you are not expected to be an expert in identifying fraudulent documents. If you are provided with a false document you will only face a civil penalty if it is ‘reasonably apparent’ that it is not genuine or does not belong to the holder.
Who must carry out the repeat right to work checks?
The responsibility of performing repeat right to work checks will remain with you as the employer. You cannot delegate this responsibility to a third party, such as a recruitment agency. Whilst a member of your staff can carry out the check on your behalf, you will remain responsible for any civil penalty in the event that the repeat check is not carried out correctly and the employee in question is found to be working illegally.
What are repeat right to work checks?
Having conducted right to work checks on all prospective employees prior to the start of their employment, you may also need to carry out repeat checks on existing employees who have been identified as having time-limited or restricted permission to work in the UK or to do the work in question.
A repeat check is where you re-confirm the working status of an individual ahead of expiry of their previous permission. For example, the individual may have applied for and been granted a new visa with further leave to remain in the UK.
By carrying out a repeat right to work check correctly, you will retain your statutory excuse in the event that the individual employed is found to be working illegally.
When are repeat right to work checks necessary?
In accordance with Home Office rules there are a range of documents that you may accept as suitable proof of a person’s right to work in the UK. These documents fall into two distinct categories, ie; List A and List B. These lists are subject to change, and employers are advised to ensure they are working to the most recent versions.
List A documents are evidence that an employee has a permanent and unrestricted right to work in the UK, for example, an EEA passport or Biometric Residence Permit stating that permanent residence has been granted.
In these circumstances, if you conduct the right to work checks correctly prior to the employee starting work, you will establish a continuous statutory excuse for the duration of their employment. As such, no repeat checks will be necessary.
If an employee presents documents from List B, these should be evidence of an employee’s temporary or restricted right to work in the UK, for example, a Biometric Residence Permit indicating that only limited permission to be in the UK and to do the work in question has been granted.
Whilst these documents will enable you to establish a time-limited statutory excuse, you will be required to conduct a repeat check when the individual’s permission to work within the UK or do the work in question expires.
When do I need to verify an employee’s right to work with the Home Office?
You will need to verify an employee’s right to work with the Home Office Employer Checking Service in the following circumstances:
- you are presented with a Certificate of Application which is less than six months old and which indicates that work is permitted.
- you are presented with an Application Registration Card stating that the holder is permitted to undertake the work in question.
- you are reasonably satisfied that your employee has submitted an application to extend or vary their permission to be in the UK prior to the date on which permission expired, or has an appeal or administrative review pending a decision.
In these instances, you will only be able to establish a statutory excuse if the Home Office provides you with a ‘Positive Verification Notice’ to confirm that the applicant has the right to work in the UK and is permitted to do the work in question.
A Positive Verification Notice will provide you with a time-limited statutory excuse of up until six months from the date specified in that notice. As such, you should conduct a repeat check when this notice expires. If you receive a Negative Verification Notice, you will no longer have a statutory excuse in the event that the employee in question is found to be working illegally.
What happens if I fail to carry out right to work checks?
If you fail to carry out a right to work check correctly, or at all, and you are found to be employing someone illegally, you may incur a civil penalty of up to £20,000 per illegal worker.
You may also be liable to criminal prosecution if you knew, or have reasonable cause to believe, that the individual did not have permission to work in the UK or to do the work in question. In these circumstances you will be unable to rely on the statutory excuse, regardless of whether you have carried out the right to work checks or repeat checks.
Should I seek legal advice?
The law relating to right to work checks can be complex. Failure to carry out repeat right to work checks on existing employees, or to do so correctly, can result in civil or criminal sanction.
For advice and guidance on implementing effective right to work checks, including process reviews and staff training, take expert legal advice from an experienced immigration specialist can help you to avoid the procedural pitfalls, ensuring that your business remains compliant at all times.
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, 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.