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How to Check an Employee’s Right To Work in the UK

As a UK employer, you are obliged to run checks on the right to work status of all your prospective employees. This is to prevent illegal working and ensure that the job applicant’s immigration status aligns with the work on offer.

For further clarifications on the diverse ways through which you can conduct these checks, call us on 0333 305 9375. You can trust our expert immigration lawyers to walk you through every bit and piece of the process.

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Overview of the Idea of Checking an Employee’s Right To Work

Going by Sections 15 to 25 of the Immigration, Asylum, and Nationality Act (2006) and fully enforceable by the Home Office guidelines, you have the legal obligation to check the original documents and work permission of your applicants.

This means that right to work check is properly conducted at the pre-employment stage. However, it must be done without any form of discrimination against prospective employees irrespective of colour, race, or nationality.

By discharging this responsibility, you are building a statutory excuse for yourself and against any possible accusations of compliance breaches. Now, to work in the UK since October 1, 2022, employers have the legal right to run the Right to Work checks physically (manual check) or using measures introduced by the Identity Service Provider (IDSP).

What Are the Government Approved Ways to Check Right to Work Status and Original Documents?

From October 2022 employers will no longer be permitted to perform Right to Work checks without meeting stipulated government criteria. Depending on the nationality of a worker, the type of check conducted can alter, but an employer is not allowed to dictate which method an individual chooses to demonstrate their eligibility. To comply with these laws, employers have four options available when it comes to Right to Work checks:

  • Manual Right to Work Checks
  • Digital Right to Work Checks
  • Online Right to Work Checks
  •  Employer Checking Service

With the right processes in place, performing these Right to Work checks can be a relatively simple process that supports organizations in fulfilling their legal duties and streamlining operations.

Manual Right to Work Checks

Manual checks are the most traditional and straightforward approach to Right to Work checks. Employers will need to inspect original versions of documents such as a passport or biometric residence permit to ascertain eligibility. It is important that employers follow Home Office guidance when conducting manual right to work checks, including confirming that documents appear genuine and validating photographs, dates of birth, and expiry dates. Especially when online checks aren’t possible, the Home Office has endorsed manual check to be effective and reliable. Meanwhile, there are 3 steps you need to observe here.

Manual Check Step 1 – Obtain

The first and most important step is that you maintain the physical possession of the documents in question. The two sides to the coin here involve conducting the check physically with the individual or via video call as you go through the applicant’s original documents.

As for the existing employees with limited permission to stay and work in the UK, probably due to a work visa with a closer expiry date, all you have to do is schedule follow-up checks with them and this must be done before the expiry of the limited leave.

According to the Home Office, the documents to prove the Right to Work status have been listed under List A and List B. For the former, only applicants with a permanent right to work in the UK can use it and this includes:

  • British citizens.
  • Folks with settled status under the EU settlement scheme.
  • ILR holders.

For British citizens, you’ll need a copy of the main page of their passports as proof of legal right to work in the UK. In an instance where the passport is not available, you must get and keep the National Insurance Number, marriage certificate, adoption certificate (or birth certificate), or naturalization/registration certificate of each future employee.

Concerning the ILR (Indefinite Leave to Remain)holder, you have to check and retain such an individual’s Biometric Residence Permit (BRP). If the BRP is not available, the passport which supports the claim that the applicant has no time limit to stay in the UK will also suffice.

On the other hand, List B covers individuals whose work permission in the UK is time limited. For instance, EU nationals and EEA nationals entering the United Kingdom after January 1, 2021, fall in this category.

Manual Check Step 2 – Check

It’s quite understandable that employers are not trained in the detection of fraudulent documents and immigration status, but that doesn’t preclude you from exercising due diligence to ensure that:

  • The documents are original, unaltered, and belong to the individual who tendered them to you.
  • The photographs across all the original documents are of the applicant sitting before you.
  • The expiry date for the individual’s right to work in the UK is not due.
  • The applicant has the work permission to be hired for the nature of work you want to give out.
  • There’s uniformity of dates of birth across all the employee’s documents.
  • For students, there is proof of study and vacation times.
  • Even if two or more documents give conflicting information, the applicant has other acceptable documents explaining the reason for the disparity, probably a marriage certificate.

Manual Check Step 3 – Retain

Checking the right to work or immigration status documents of an applicant effectively depends solely on record keeping. Therefore, you need to make and keep copies of all the documents presented alongside the date they were checked.

Digital Right to Work Checks

With the aid of Identity Document Validation Technology (IDVT), employers can also employ the Identity Service Provider (IDSP) to run checks on the job applicant’s right to work status. However, this measure is only applicable to British and Irish citizens the online service of the Home Office can’t ascertain.

This identity document validation technology promotes digital checks and does the documentation on the employer’s behalf. With this technique, you can build a statutory excuse to save you from any civil penalty in the future.

Digital Check Step 1 – Check

As a UK employer, you need to conduct and make a proper record of the visual checks you’re running on the applicants from the moment they present themselves before you. This means that you’re convinced that the applicant’s details such as date of birth, photographs, and others are consistent with the person in front of you.

Digital Check Step 2 – Retain

You have the legal right to retain copies of the original documents checked with the identity document validation technology for the period of the worker’s employment and two more years after the termination of the contract of employment.

Online Right to Work Checks

  • Settled or pre-settled status with the EU Settlement Scheme.
  • A Biometric Residence Permit.
  • Frontier Worker Permit.
  • A Biometric Residence Card.

You can use the online checks when your potential employee possesses any of the above-listed documents. This can be further connected to the new regulation of April 6, 2022, where the FWP, BRP, and BRC holders have to go through the online service of the Home Office.

Having logged into the official website of the Home Office, you should see a section tagged “view a job applicant’s right to work details”. Follow the steps from there. Also, it must be noted that the correct share code for Right to Work checks starts with the alphabet “W”.

Online Check Step 1 – Check

You can conduct the checkings through a video call and it doesn’t require a physical presentation of the original documents since the applicant’s details can be directly obtained from the Home Office.

However, using an online check and share code means that you need to see the new employee physically on the first day. This is to help confirm that the person in the photo is the same as the person hired for the job.

Online Check Step 2 – Retain

The employer is also under the legal obligation to retain a copy of the Right to Work check in a manner that confirms the eligibility of the new employee to work in the UK. Here, the page can be printed out as a hard copy or saved as an HTML or PDF file.

Irrespective of the method of retention you choose, you can keep the copy for the full period of the employment with additional two years after the employment is terminated.

Employer Checking Service

Built by the Home Office, the Employer Checking Service (ECS) is recommended for use only when you’re unable to access the new employee’s right to work digitally, whether with the individual’s original documents or share code.

This problem might be a result of irregularities in the work visa or a pending appeal, review, or application. Once the Application Registration Card is available, this method should also be adopted by employers to officially request the Home Office to run a check on an applicant’s immigration status.

Get in touch with our expert immigration lawyers to receive assistance on your employee’s right to work.

What To Do When an Employee Loses His Right to Work Documents But Is Already Employed?

It is worth reminding that failure to wage war against illegal working in the UK is an offence liable to a civil penalty. However, the first step to recovery here is that the employer seeks to understand and evaluate why the Right to Work status changed.

This may be due to the expiry date of the employee’s work visa, revocation of the work permission as a result of the violation of his visa conditions, and others. Subsequently, the employer must ensure that best practices are observed – proper record keeping of the documents among others.

It is also advised that the employer schedules follow-up checks with the employee to know if the latter has made necessary submissions to the Home Office for application. This way, the steps taken to resolve the problem will be deemed to be fair and in favour of the employer, even if there is no mutually beneficial solution.

Therefore, dismissal for loss of Right to Work status and documents will be the last resort. However, this doesn’t overrule the possibility of the employee pushing for unlawful dismissal.

If you have any questions about your employee’s right to work, our team is happy to assist.

How can IAS Help

In order to ensure best practices, employers should follow Home Office guidance on the prevention of illegal working and ensure that all personnel are aware of their responsibilities. Employers should also consider investing in IT systems to assist with the detection of fraudulent or counterfeit documents, such as photograph-matching technology. This can help reduce the risk of a breach of immigration laws and reduce the potential for fines.

At IAS, we understand that employers have a duty to ensure that their recruitment process is compliant with all relevant laws and regulations. We are here to help employers navigate the complex world of business immigration, providing expert advice on legal requirements, compliance, and workplace culture. Whether it be a single person or an entire workforce, we strive to ensure that all employers are meeting their obligations and protecting the business from potential risks. Contact us today on 0333 305 9375 to find out how we can help you remain compliant with employees right to work requirements and your immigration obligations.

We offer immigration advice sessions as face to face appointments at all of our UK offices, or via the phone.

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Frequently Asked Questions

It is the full responsibility of the employer to ensure that all employees within his jurisdiction possess the documents and the Right to Work status in the UK. Thus, only the employer will be held responsible and liable for a civil penalty if an individual with inaccurate documentation is hired.

No, the best way is when you check the worker’s right to work before such a person resumes work for you. It’ll also save you from possible allegations of compliance breaches that might later occur.

No, a photocopy provided by the applicant is not advisable. Therefore, you need to receive the original documents, properly examine them, and retain the copies.

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