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Right to Work Checks

UK employers must conduct right to work checks on all UK-based employees to ensure they have correct status to work in the UK. Here, we answer some FAQs.

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An introduction to right to work checks

A right to work check is a check which employers must do on every UK-based employee to confirm that they have the appropriate immigration status in order to work in the UK. If you have carried out a right to work check you will be given a statutory excuse if it is later found that you have employed an illegal worker. In this article we outline some commonly asked questions in relation to right to work check

Right to work checks: FAQs

How often should we do right to work checks?

The answer depends on whether an individual has a time limited check or a non-time limited check. Additionally, it will depend on a business’ resources and the volume of people requiring a check. For instance, if an individual has evidence of their British citizenship, indefinite leave to remain, or another form of permanent status then you do not need to carry out any further checks. However, if an individual’s leave is time limited then you will need to mark the date in which their leave expires and then carry out a check before that date to ensure that you are not employing someone whose visa has expired.

At Paragon Law we recommend that you commence the checking 3 months before an individual’s visa expires. This length of time ensures that the individual is aware of what is happening and enables them to sort out relevant processes, e.g., talk to their legal representative or allow their sponsor to prepare their application. You need to ensure that the application has been submitted prior to the person’s visa expiring, once you receive this confirmation then you can proceed with the ECS.


When employing someone through an agency, whose responsibility is it to do the right to work checks?

If the staff are paid by the agency, then it is the agency’s responsibility to ensure that they have the right to work in the UK. Make sure that you have this in your contract in order to mitigate against any possible implications.

However, it is important that you have checked that the agency has carried out these right to work checks. This is because if you have an unannounced visit at your business premises and it turns out that the agency workers do not have the right to work in the UK then you are still likely to face reputational damage.


If someone has applied for a visa extension, is there a 30-day grace period for them to obtain and provide a new right to work?

If someone applies to extend their visa very close to when their leave expires and you’re not getting a positive ECS check or a positive verification notice (PVN) and someone is insistent that they have made an immigration, and you are aware of the delay in the UKVI’s system then you are in a difficult position.

It is important to encourage everyone to apply for a visa extension as early as they can – we recommend applying for an extension at least one month in advance. 

However, if you do find yourself in this situation, we advise that you try and get as much evidence as you can to prove that their application has been made. You should then put this on file and explain why you’re not letting that person go or suspending them (e.g., you know that the ECS check can take up to 28-days to be updated). Ask the individual to provide as much information as they can to show that they have the right to work in the UK, evidence can include:

  • The email confirmation from the UKVI confirming that their application has been submitted.

  • The email receipt from the UKVI confirming that they have paid for their application.

  • A digital download of their immigration application.

Can you create a share code after you have hired someone?

It is always better to do a right to work check than to not do one at all. So even if you are creating a share code after you have employed someone at least it shows that you have done one.


Someone on a dependent visa has a different surname to the main applicant: how can we link the two?

When someone is given a dependent visa, they will also be given a letter confirming that they have been given status as the dependant of XYZ. If you have any concerns about an individual’s dependent status, then it is worth asking for this letter. It is worth bearing in mind that this letter does not act as their status, rather you can only use it to link the individual to a dependent. Usually, these individuals’ leave will line up with one another.

If the visa has been approved from outside of the UK, then applicants get a letter attached to their passport. Since this letter is sent out digitally it means that we can view the in-country letter. The difference between in-country and out of country visas is that out of country visas specifically state when they can collect their BRP. In the cases where a visa has been approved from outside of the UK, but the individual does not have this letter, then the individual may only have the 3-month endorsement on their visa as dependents to enter.

When assessing the genuineness of a dependent visa you need to consider that many women will continue to use their maiden name after marriage, and so, you may want to request their marriage certificate to prove their relationship.

Enquire now about right to work checks

Whether you would like assistance or advice in relation to right to work checks, or if you would like assistance with another matter of UK immigration law, then get in touch today to speak to one of our immigration lawyers.

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What does ECS mean?

ECS is an abbreviation for an Employer Checking Service. 

An Employer Checking Service (ECS) generally refers to situations where you have an individual saying that their visa is about to expire and that they have submitted another application. The ECS allows you to see that this is the case and that you have evidence of this.

To do an ECS you go online and put in the details and provided that the individual has submitted an application you will receive a PVN (positive verification notice). When doing this check, please give the UKVI about 28 days to get their system updated (e.g., if an individual submitted their application on the 1st May 2022, don’t look for a PVN until the end of May 2022).


What is the difference between the Employer Checking Service (ECS) and the online checks? 

The ECS is the system which you use to check that an individual has attempted to bridge the gap between their visa expiring and applying for a new one. You use the ECS to gain evidence that an individual has submitted a new visa application.

Whereas the new online check only affects certain types of visas (BRPs, eVisas and the Frontier Work Permit) and enables you to check that those documents are genuine. This check refers to verifying that the photograph provided in the document matches the individual. The check can be done digitally or in-person.


Can you employ a person and then carry out an Employer Checking Service check, or does the Employer Checking Service check have to be carried out before they can commence employment?

The Employer Checking Service (ECS) checks tend to be carried out on individuals who are already working for you. Therefore, if someone comes to you and says that their visa expired and they have applied for a new one, then you could technically carry out an ECS check and employ them on that basis. However, an ECS check only gives you a defence for six months so ensure that you mark down this date and resolve it in time.

It is important to note that you will always need to get the right to work documents in place before an individual starts working for you. Therefore, complete an ECS check prior to when an individual starts working for you as you cannot have someone work for you without having been provided with evidence of their right to work.


We are going through the process of an overseas visa sponsorship, once the biometric residence permit comes in do we still need to complete an Employer Checking Service (ECS) check?

In this instance you won’t have to complete an ECS, however, you will need to run the Home Office’s online check. This is the process you will need to follow:

  1. Mark up the 3-month expiry date and make a photocopy of the passport page which contains the 3-month visa.

  2. When you have the BRP, complete the Home Office’s online check.

  3. Retain either a physical or digital copy of the profile page.

  4. Make a note of the date in which the visa expires.

  5. Ensure that the individual knows to either switch or extend their visa application at least 3-months in advance of their current visa expiring.

The old rules apply to checks carried out before 06/04/2022.


Can an individual continue to work for us if they were originally on a student visa but have since switched to the graduate visa?

As an employer you should record the end date of their student visa. And then prior to the end date of their student visa, you should ask the student to provide evidence that they have the right to continue to work for you in the UK.

The student can apply for their graduate visa as soon as they have passed their course. Usually there is a 4-to-6-month window between the date their student visa expires and the date in which they have passed their course.

The graduate visa tends to be dealt with relatively quickly, so in a perfect world, the graduate visa should be approved at least a few months before an individual’s leave expires. If an individual applies late, they must inform you of the date they made the application. Hopefully in this case the graduate visa will be in place by the point that their student leave expires, however, in situations where an individual’s student leave expires before the graduate visa is approved, then we advise that you conduct an ECS check. An ECS check will give you the statutory defence that the application has been submitted prior to the student visa expiring, showing that they are allowed to continue working for you whilst they await a decision on their graduate visa.


What happens to an individual’s right to work status if their student visa expires before they have received a decision on their graduate visa application?

Regardless of the visa, if a visa holder has applied to extend or switch their visa before their current visa expires then the terms and conditions of their current visa will automatically extend until the Home Office makes a decision on their new application. 

In the case of the student, if they have passed their course and submitted their application in time then they will be able to continue working full-time. This is because on a student visa, individuals can work full-time outside of term time, and so, this individual can continue to do so until a decision has been received on their graduate visa. However, whilst on the student visa they would not be able to be employed as a permanent member of staff.


When proving the right to work status of international students, as a higher education institute we provide employers with a letter stating the term dates and another letter providing information about the individual in question. However, some employers ask for more personalised information – are we providing the right information?

Yes, you are providing the right information through the combination of the term time letter and the personal information letter. In fact the UKVI guidance in regard to employing international students states that they would be happy to receive a printed copy of a university’s term dates taken from their website and put on their personnel file. However, we don’t advise our clients to do that because PhDs have very different term times to those at postgraduate or undergraduate level.



Want more information?

At Paragon Law, our immigration solicitors and lawyers have supported many businesses to successfully conduct right to works and remain compliant in their duties as an employer. If you would like assistance from our expert business immigration lawyers then please get in touch with us. Alternatively, head over to our dedicated page on right to work checks to find out more about the checks.

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