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.
The purpose of right to work checks is to verify that someone has the required immigration status to work in the UK.
During Tony Blair's leadership of 'New Labour', the Government faced criticism for their immigration policy and failure to effectively prevent illegal working. Consequently, the Government, as well as subsequent administrations, have adopted a stricter stance on immigration. As part of this, employers are now legally required to conduct right to work checks to ensure that an individual has the necessary immigration status to work in the UK.
Aside from meeting legal obligations, right to work checks also allow employers to exercise some level of control. By verifying an individual's immigration status prior to them commencing employment, employers can avoid investing significant time and resources into an employee who is later found to be illegally in the UK.
In essence, right to work checks were implemented to enable the Home Office and the Government to maintain oversight of the UK's immigration system and to take swift action in the event of illegal immigration.
Yes, right to work checks are a legal requirement. Failure to conduct a right to work check can result in very serious consequences.
If you don’t do a right to work check and it is later found that employees hired are not permitted to work in the UK, then the following consequences may incur (among other consequences):
A civil penalty of up to £20,000.
A criminal conviction of a 5 year penalty.
Closure of the business.
Disqualification as a director.
Sponsor licence revocation.
Seizure of earnings made as a result of the illegal employees.
It is important to note that the Home Office does get things wrong, and so, it is important to get advice from an immigration lawyer if you are found to have employed someone who did not have the right to work in the UK.
There are a number of right to work checks:
Right to work checks must be carried out on all new starters before their first day of work. For instance, you may choose to ask those shortlisted for interview to present their right to work documents at interview to verify that they have the right to work in the UK prior to employment. Alternatively, you may choose to only ask the successful candidate to present their right to work documents prior to commencing employment with you. When you ask for the right to work documents to be presented to you is up to your business, but you must check and verify the right to work documents of new starters before they start their employment.
Businesses should have a written policy that is regularly updated in accordance to the new immigration rules in order to maintain a statutory excuse. This policy should state that right to work checks need to be done prior to an individual commencing employment with you.
How often you should be carrying out right to work checks is dependent on whether an individual has a time limited check or a non-time limited 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 right to work check before that date to ensure that you are not employing someone whose visa has expired.
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 Employer Checking Service.
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.
Manual right to work checks can be used to check a person’s right to work in-person using a physical copy of their right to work documents. This kind of check is used when an online check cannot be conducted.
A manual right to work check has three stages: obtain, check and retain.
Step 1: Obtain
You must gain the individual’s original documents using either List A or B (whichever is applicable to the individual).
Step 2: Check
Once you have the original documents, you must check that they are genuine, they belong to the individual in question, and they enable the individual to do the type of work on offer. This check can be done either in-person or via live video link, however, you must be in possession of the original documents in order to have a statutory excuse. When doing the manual checks you are checking that:
The photographs in any documents match the person in front of you.
The date of birth on the documents is consistent with the person who is presenting themselves to you.
The expiry dates are valid - make sure to make a record of the expiry date(s) to ensure that you make a follow-up check.
There are no specific restrictions on the type of work that the individual is doing.
The UKVI also asks that you look to see if there is any evidence of the document(s) being tampered. However, as employers you are not expected to be fraud experts, and so, the fact that you have gone through this process will give you a statutory excuse.
Step 3: Copy
After you are satisfied that the individual is who they say they are and has the right to work in the UK then you must retain a copy of their right to work documents for your records.
The copies you make must be clear and kept in a format which cannot be edited (either an electronic or physical copy). You must also make a record of the date in which the check took place.
All right to work documents (except passports) should be copied in full. When it comes to copying passports, you only need to make a copy of those pages which contains an expiry date, the holder’s nationality, date of birth, immigration permission, biometric details, photograph, and information about their permission to leave/enter and right to work in the UK.
This electronic or physical copy should be securely stored for the duration of employment and for an additional 2 years after the employment has ended.
An online right to work check (also known as a digital right to work check) is conducted through the internet using a share code (in most cases) to confirm an individual’s right to work in the UK.
Not all individuals will be able to have their right to work status checked online and in these circumstances a manual right to work check will need to be carried out.
To carry out a digital right to work check, head over to the online service.
An online right to work check can be used by an employer to verify an individual’s right to work status in the UK. From the 6th of April 2022, a digital right to work check must be conducted on individuals who have one of the following documents:
A biometric residence permit (BRP),
A biometric residence card (BRC),
A frontier worker permit,
An eVisa.
In order to run an online right to work check, the individual (current or prospective employee) will need to generate a share code and pass it on to you. You will then need to use this share code alongside the worker's date of birth to complete the online right to work check.
Step 1: Use the Home Office online service
Gain the individual’s share code.
Head to the service ‘View a job applicant’s right to work details’ on GOV.UK.
Enter the individual’s share code and date of birth.
Step 2: Checking the individual’s permission to work in the UK
You must verify that the photograph on the right to work check is that of the individual you want to hire (this can be done face-to-face, or by video link).
You must check that the individual has the right to work in the UK to do the type of work which you hope to employ them to do and see if they have any restrictions.
Make a note of the expiry date to ensure that you are prepared to carry out follow-up checks before this date.
Step 3: Retaining the evidence
You must keep a copy of this digital right to work check in the form of a ‘profile’ page. This profile page is the one which contains the individual’s photograph and the date which the check was carried out. You can either print the page or save it as a PDF or HTML file. This electronic or physical copy should be securely stored for the duration of employment and for an additional 2 years after the employment has ended.
In order to carry out a digital right to work check, individuals will need to provide a share code.
To generate a share code, individuals must head over to this link (‘Prove your right to work to an employer: get a share code’) and fill out the relevant information. Once completed a share code which is 9 characters long (starting with a W) will be generated and this must be passed on to you (the employer).
This share code will be valid for 90 days and it can be used as many times as needed.
When this share code is used alongside the individual’s date of birth you will be presented with the relevant information regarding the individual’s right to work in the UK.
Please note that when accessing their share code, individuals are required to state the purpose the share code is needed for. Share codes which begin with a ‘W’ have been generated with the purpose of proving an individual’s right to work. If you have been presented with a share code which starts with a different letter (R or S) then this cannot be used to prove a worker’s right to work in the UK, and so, you will need to request that the individual generates a new right to work share code.
Individuals can choose to send their share code directly to you, or they can share it to you through the online service. If they choose the latter option, then you will receive an email from right.to.work.service@notifications.service.gov.uk.
Employers can use certified digital identity service providers (IDSPs) and identification document validation technology (IDVT) to conduct digital identity checks on eligible British and Irish citizens. The introduction of this technology to conduct digital identity checks is to accelerate the recruitment and onboarding process.
An IDVT can be used to verify a British or Irish citizen who has a valid passport (or passport card if they are an Irish citizen).
Step 1: Check
You must conduct a visual check of the individual, checking that the person in front of you matches the documents provided (e.g. matches the photographs and their date of birth is consistent). This check can either be conducted in-person with the person physically in-front of you, or via live video link with the individual.
Step 2: Copy
If you are satisfied that the person presenting to you is who they say they are then you must make a copy of their documents and send them to your chosen IDVT provider. Once the documents are uploaded, the IDVT will generate a report which will either confirm or deny that the document is valid. If the report confirms that the documents provided are valid then you will have a statutory defence.
Step 3: Retain
You must retain copies of the IDVT for the length of the individual’s employment, plus an additional two years.
The Employer Checking Service, also known as ECS, is a service which is used to check an individual’s immigration status when the individual is unable to present valid right to work documents or when they have an outstanding immigration application or appeal.
By conducting an ECS check, you can verify whether an employee with a time-limited immigration status has made an application to extend or switch their visa before the current one expires. Unlike the Home Office online check, the ECS check does not require any documentation.
Usually, Employer Service Checking (ECS) checks are carried out when a current employee's immigration status is time-limited and has expired. In such situations, it is crucial to ensure that the employee has either applied to extend their visa or switched to another UK visa.
To achieve this, you must conduct the ECS check and obtain a 'positive verification notice' (PVN) from the Home Office. The PVN confirms that the individual has made an in-time application to either extend or switch their visa. It is worth noting that the PVN remains valid for six months. However, if a decision on the immigration case is not reached within six months, another ECS check must be done to obtain another PVN. It is important to keep in mind that the second PVN will only be valid for another six months while the individual awaits a decision on their immigration status.
ECS is an abbreviation for an Employer Checking Service and it is a tool that enables employers to verify the immigration status of their employees. Specifically, it is useful when an employee claims that their visa is about to expire, but they have already submitted another application. With the ECS, employers can confirm whether the employee has indeed submitted an application and obtain evidence to support this.
To carry out an ECS check, employers can go online and enter the relevant details. If the employee has submitted and application, then you will receive a ‘positive verification notice’ (PVN). It is important to note that it may take up to 28 days for the UKVI’s system to be updated. For instance, if an individual submitted their application on 1 May 2022, you should not expect to receive a PVN until the end of May 2022.
The Employer Checking Service is a tool which allows employers to verify whether an individual has taken steps to renew their visa before their current one expires. By using the ECS, employers can obtain evidence that an individual has submitted a new visa application and ensure they remain compliant with immigration regulations.
Whereas, online right to work checks only applies to specific types of visas such as BRPs, eVisas, and the Frontier Work Permit. An online right to work check serves to confirm the authenticity of these documents and verify that the photograph provided in the document matches the individual. It can be carried out either digitally or in-person, providing a convenient and efficient way for employers to ensure that the documents presented by their employees are legitimate.
If an individual applies for a visa extension close to the expiry date of their current visa and their ECS check or PVN is not positive, it can create a challenging situation. To avoid this, it is crucial to encourage individuals to apply for an extension at least one month in advance.
However, if you do find yourself in such a predicament, it’s best to gather as much evidence as possible to prove that the individual has applied for a visa extension.
A Positive Verification Notice (PVN) is confirmation that an individual has the right to work in the UK. By obtaining a positive verification notice, an employer will have a statutory excuse for six months from the date on the PVN.