Understanding right to work checks for employers

All employers in the UK have a responsibility to prevent illegal working. This is achieved by carrying out a simple right to work check before you employ someone – you must ensure that the individual is not disqualified from carrying out the job because of their immigration status. 

While some individuals are automatically entitled to work in the UK, others may have restrictions on their eligibility to work, how long they can work and what type of work they can do. 

Who should I conduct a right to work check on?

You should not discriminate when conducting right to work checks – these should be carried out on all potential employees, including British Citizens. Do not simply check the status of those who appear to be migrants, otherwise you could be breaking the law. You should not make assumptions about a person’s right to work in the UK or their immigration status on the basis of their colour, nationality, ethnic or national origins, accent or the length of time they have been resident in the UK.

What should I do before employing a candidate?

1. Obtain original documents from either List A or List B 
2. Check that the documents are genuine.
3. Check if the person has the right to work in the UK.
4. Make a copy of each document.

The identification you need to see depends on where the person is from and what their visa/residency status is. The Home Office defines the documents which can be accepted in two comprehensive lists – List A and List B.

List A contains range of documents which you may accept for a person who has permanent right to work in the UK. If they provide you with acceptable documents from List A at Annex A there is no restriction on their right to work in the UK, so you establish a continuous statutory excuse for the duration of the persons employment with you. You are not required to carry out any further check on this person.

List B contains a range of documents which may be accepted for a person who has temporary right to work in the UK. In this case you will be required to conduct a follow up check in order to retain your statutory excuse. 

Check the documents for authenticity

You must do the checking in the presence of the holder and must be in physical possession of the original documents. You may not reply on the inspected of the document via a live video link or by checking a scanned copy of the document. However, there are exceptions due to COVID-19 which are mentioned below in detail. 

The following details should be checked:

• Photographs and dates of birth must be consistent across documents to detect impersonation.
• Expiry date for permission to be in the UK must not have passed.
• Any work restrictions to determine if they can do the type of work on offer.
• The documents must genuine, not tampered with and belong to the holder. 
• If there is any difference in names across documents, reasons should be given and supporting documents should also be photocopied and retained.

   

Keep a copy of each document

The documents should be copied in a format which cannot later be altered and retain the copy securely: electronically or in hard copy. You must make a record of the date on which you conducted your check, this can be done by either making a dated declaration on the copy of by holding a separate record. 

• For passports, copy any page with the expiry dates and applicant’s details (for example nationality, date of birth and photograph) including endorsements for example a work visa.
• There are various forms of work visas and residence permits issued which allow foreign nationals to live and work in the UK legally. Some visas are permanent and therefore only need to be checked once at the start of employment. Any visa with an expiry date needs to be monitored and checked regularly. 
• All other documents – the document in full including both sides of a Biometric Residence Permit, Application Registration Card and Residence Card (biometric format)
• All copies of document should be kept securely for the duration of the workers employment and for two years afterward- the copy must then be securely destroyed.

   

Brexit and right to work checks:

The Home Office has announced that there will be no change to right to work checks until after 30 June 2021 and employers will not be required to undertake retrospective checks on existing EU national employees.  Until 30 June 2021, employers will be able to check a job applicant’s right to work in the same way as now. This means that a European passport or ID card will be sufficient to evidence a person’s right to work.

EU Nationals already resident in the UK before the 31 December 2020 will have until 30 June 2021 to protect their immigration status by submitting an application to the EU Settlement Scheme for pre-settled status or settled status. EU Nationals who arrived in the UK after 31st December 2020 will not have the right to work unless they have obtained visa permitting them to do so, before arriving in the UK. Such individuals will not be able to submit applications to the EU Settlement Scheme.

Employers should encourage any EU nationals they have working for them to apply if they have not done so already. Job applicants can prove their right to work using any of the following:

• Their valid passport or national identity card if they are an EU, EEA or Swiss citizen
• Their valid biometric residence card if they are non-EU, EEA, or Swiss citizen.
• Their status under the EU Settlement using the Home Offices online right to work checking service. 

Further information is provided on our Visiting UK after Brexit blog.

Exceptions made due to COVID-19:

As of 30 March 2020, the following temporary changes have been made:

• Checks can now be carried out over video calls.
• Job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app rather than sending original.
• Employers should us the Employer checking services if a prospective or existing employee cannot provide any of the accepted documents.

It remains an offence to knowingly employ anyone who does not have the right to work in

the UK.

Conducting a right to work check during the temporary COVID-19 measures:

• Ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app.
• Arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents.
• Record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”.
  
  

If the worker has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme you can use the online right to work checking service while doing a video call – the applicant must give you permission to view their details.

Penalties:

It is a legal requirement for employers to make sure that prospective employees have the right to work in the UK before their employment starts. The risk to businesses is significant given the penalties that can be imposed for employing illegal workers. Employers can face civil penalties up to £20,000 per illegal worker.