What is the Right to Work Check?
A right to work check is an assessment of whether an individual has the legal right to work in the UK.
All employers must check that their employees have the right to work in the UK before they start work.
Right to work checks can be carried out by asking for original documents, such as a passport or visa, or by an online checking service.
The document type required will depend on the employee’s nationality and immigration status.
The checks must be carried out for all new employees, regardless of their country of origin. Failure to carry them out is a criminal offence.
Employers who are found to have hired someone without the right to work in the UK can be fined up to £20,000 per employee.
Hence, an employer must prevent liability for a civil penalty, also called ‘establishing a statutory excuse against liability for a penalty.’
By doing this, employers would not have to pay any financial penalty if they are found to have employed someone without the right to work in the UK.
- What is the Right to Work Check?
- How to Establish a Statutory Excuse for Right to Work Checks
- How to Conduct a Manual Right to Work Check
- How to Conduct Right to Work Check using IDVT
- How to Conduct an Online Check using the Home Office Employer Checking Service
- Acceptable Documents for a Manual Right to Work Check
- How Can Immigration Advice Service Help?
How to Establish a Statutory Excuse for Right to Work Checks
A statutory excuse is an employer’s defence against liability for a civil penalty if they are found to have employed someone without the right to work in the UK.
There are three ways an employer can establish a statutory excuse:
- Manual check of right to work.
- Using IDVT via the services of an IDSP.
- Checking an employee’s status on the Home Office Employer Checking Service.
Step 1: Obtain the employee’s original documents
The employer must see the employee’s original documents that prove their right to work in the UK.
The list of acceptable documents can be found under ‘Acceptable Documents for a Manual Right to Work Check’ of this guidance.
Step 2: Check that the documents are genuine and belong to the employee
The employer must check that the documents are genuine, have not been tampered with and belong to the prospective or existing employee.
The employer should also ensure that the employee is who they say they are by checking their ID against other documents, such as a birth certificate or driving licence.
You must confirm the following:
- The document is genuine and has not been tampered with.
- The photograph matches the appearance of the employee.
- The dates of birth match.
- The name on the document matches other identification documents, such as a birth certificate or driving licence.
- The expiry dates for permission to be in the UK have yet to pass.
- The reason for any difference in the documents can be explained by providing additional documents such as the original marriage certificate, divorce decree absolute, and deed poll.
Step 3: Make and retain copies of the documents
The employer must make and retain copies of the documents that prove the prospective employee has the right to work in the UK.
The copies should be clear, legible and stored securely. The documents can be scanned and stored electronically as long as they are kept together with the physical records.
The copies must include the following:
- The front and back page of the document, if it is a passport or biometric residence permit.
- All the pages containing personal details, endorsements and permissions to work.
- The page containing the employer’s stamp if an employer has used the Home Office Employer Checking Service to check an employee’s right to work.
- Any restrictions on the document.
- The date the check was made.
- The name and signature of the person who carried out the check.
- The name of the employee.
All copies of documents taken should be kept together in a single file for each employee for a period of two years.
From 6 April 2022, employers can use the new Identity Document Validation Technology (IDVT) service to check employees’ rights to work. The service is available through the services of an IDSP.
IDVT uses facial biometrics and document security features checks to compare a photo of the employee, taken on a mobile phone or webcam, with the image on their right to work document.
This will confirm that the document belongs to the employee and that it has not been tampered with.
To use the service, employers must first register with an IDSP, who will provide them with a unique code.
The code allows the employer to access the service and conduct right to work checks on their employees.
Basic steps to conducting a RTW check using an IDSP:
- IDSPs can carry out digital identity verification to a range of standards or levels of confidence, as set out in the Home Office’s Digital Identity Standards.
- The digital identity verification process will vary depending on the level of confidence required. However, all processes must use facial biometrics and document security feature checks to compare a photo of the employee, taken on a mobile phone or webcam, with the image on their right to work document.
- The employer will be asked to provide basic information about the employee, such as their name, date of birth and address. The IDSP will then use this information to verify the employee’s identity.
- Once the employee’s identity has been verified, the IDSP will confirm that the right to work document is genuine and has not been tampered with. The IDSP will also provide the employer with a report confirming the employee’s right to work in the UK.
The report will include the following information:
- The type of right to work check that was carried out.
- The date the check was made.
- The name of the employee.
- The name and signature of the person who carried out the check.
- The employer’s unique share code.
- The IDSP’s logo.
The report will be valid for 90 days from the date it is generated. After that, the employer must make a copy of the report and keep it with the employee’s other right to work documents.
The IDSP will also keep a copy of the report for 24 months from its generated date.
How to Conduct an Online Check using the Home Office Employer Checking Service
The online check is a service provided by the home office online system that allows employers to check an employee’s right to work in the UK electronically.
To use the home office online service, employers need to create an account and register their organisation. Once registered, they can log in and conduct right to work checks on their employees.
The online check will confirm whether the employee has the right to work in the UK and will generate a unique reference number.
This reference number, along with the date of the check, should be recorded by the employer and kept with the employee’s other right to work documents.
The online check is only valid for 28 days from the date it is conducted. After this time, a new check will need to be carried out.
Employees who hold a Biometric Residence Card (BRC), Biometric Residence Permit (BRP) or Frontier Worker Permit (FWP) can use the online right to work check to confirm their right to work in the UK.
How does the service work?
- To use the service, employees need to log in with their unique ID number and answer some security questions.
- They will then be asked to take a photo of themselves and their right to work document using a mobile phone or webcam.
- The photo will be compared with the image on the document to confirm that it is genuine and has not been tampered with.
- The employee will then be given a unique share code, which they can provide to their employer.
- The employer will use the share code to log in and view the employee’s right to work information.
Acceptable Documents for a Manual Right to Work Check
The accepted documents are in two lists: List A and List B.
An employer can carry out a manual right to work check using either a single document from List A or a combination of documents from List A and List B.
List A contains documents confirming an employee’s ongoing right to work in the UK (including those under the EU settlement scheme). These documents include:
- A passport or national identity card showing the holder is a British citizen or a citizen of the United Kingdom and Colonies having the right of abode in the United Kingdom.
- An immigration status document with no restriction on the period for which employment may be sought.
- A registration certificate or document certifying permanent residence issued by the Home Office to a national of a European Economic Area country or Switzerland.
- A current Biometric Immigration Document (Biometric Residence Permit).
- A birth or adoption certificate issued in the United Kingdom which includes the name(s) of at least one of the child’s parent or adoptive parent.
List B contains documents that show an employee has a limited right to work in the UK and will require a follow up check.
You will establish a time-limited statutory excuse against civil penalties if the employee provides you with one of the following:
- A passport endorsed to show that the holder is allowed to stay in the UK and engage in employment or self-employment, study, or a combination of these.
- An immigration status document endorsement allowing the holder to stay in the UK and engage in employment or self-employment, study, or a combination of these.
- A work permit or other approval to take employment issued by the Home Office.
- An Employment Authorisation Document issued by the Home Office.
- A letter issued by the Home Office to a job applicant for naturalisation as a British citizen confirming that no decision has yet been made on their application.
How Can Immigration Advice Service Help?
Right to work checks can be complicated for employers, especially if they are unfamiliar with the UK immigration system.
Immigration Advice Service can provide expert guidance on right to work checks and ensure that your business is compliant with UK immigration rules.
We can also help you if you have been accused of employing someone without the right to work in the UK.
Our team of solicitors and advisors are on hand to assist you with any queries you may have. Here are some of the services we offer:
- Advice on right to work checks and the documents required.
- Assistance with conducting right to work checks.
- Guidance on the penalties for non-compliance.
- Help with preparing for a Home Office audit.
Last modified on January 6th, 2023 at 5:36 pm
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