Right to work checks – an employer’s guide

It is important for employers to understand their duty to prevent illegal working and how carrying out right to work checks can help them comply with their obligations. The law on preventing illegal working is set out in sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act), section 24B of the Immigration Act 1971, and Schedule 6 of the Immigration Act 2016.

When and why should right to work checks be carried out?

A key aspect of the on-boarding process is ensuring that you have checked your prospective employee’s right to work in the UK. The responsibility to check an employee’s right to work the UK is in keeping with an employer’s duty to prevent illegal working. As such, right to work checks should be carried out before employment commences. If a right to work (‘RTW’) check is carried out correctly, an employer will have a statutory excuse against a civil penalty for illegal working.

The consequences for employers of failing to carry out RTW checks or getting the checks wrong can be significant. There are both civil and criminal offences at play, as well as the potential negative impact on the business and the ability to sponsor foreign national workers.

Whilst employers do not generally break the law if they fail to carry out a RTW check on a particular person, they carry the risk of a civil penalty if the person is identified as working illegally (i.e. without immigration permission to do so). Employers can now be fined up to £60,000 per illegal worker which is a significant amount, particularly for small companies.

It is also a criminal offence to knowingly employ or have reasonable cause to believe you are employing an illegal worker, the penalty for which can include a custodial sentence of up to 5 years and an unlimited fine. In addition to the financial penalties, there is also the risk of reputational damage.

Furthermore, employers put at risk any sponsor licence they have, or the ability to successfully apply for a licence. Employing illegal workers can lead to the revocation of a sponsor licence. Similarly, organisations applying for a sponsor licence will have their application refused if they have an outstanding civil penalty for employing illegal workers.

Carrying out compliant RTW checks can help mitigate against these risks and should therefore be routinely carried out by employers. Employers should be aware of the various way to carry out a right to work check to successfully establish a statutory excuse against a civil penalty.

How do I carry out a compliant Right to Work check?

Checks can be carrying out in the following ways:

1. Manual checks
2. Online Home Office Checks
3. Checks carried out using an Identity Service Provider (‘IDSP’)

Following important changes in April 2022, it is no longer possible to carry out a manual check on workers who have biometric residence permits/cards, eVisas or frontier worker permits. The Home Office online check must be used instead. The same applies for EU nationals with status under the EU Settlement Scheme.

It is not possible to use the online Home Office checks for British or Irish citizens. Their original documents will have to be checked manually or, provided the individual has a valid passport, using Identity Document Validation Technology through an IDSP.

In some instances, employees may not be able to provide the necessary documentation to enable an employer to carry out a right to work check. This is most common where the individual has an application pending with the Home Office or an outstanding appeal or administrative review. In these circumstances it may be necessary to use the Home Office employer checking service to obtain confirmation of the individual’s RTW. The Home Office will respond with either a Positive (right to work) or Negative Verification Notice. A Positive Verification Notice will provide the employer with a statutory excuse for six months from the date specified in the Notice.

Regardless of the method used, it is important that the RTW check is carried out in accordance with the Home Office guidance. Failure to do so means the employer will not have a statutory excuse against a civil penalty for illegal working. Compliant checks include retaining evidence of the employee’s right to work and recording the date the check was carried out. Documents evidencing the RTW check should be retained for the duration of the person’s employment and for a further two years thereafter.

Do I need to carry out a right to work check more than once?

This will depend on the nationality and/or immigration status of the employee. There are certain individuals who will have an unlimited RTW. This means there are no time restrictions on their permission to be in the UK. This includes British and Irish citizens and foreign nationals with indefinite leave or settled status. For these individuals, the right to work check will only need to be carried out once prior to the commencement of employment.

Employees who have time limited permission to be in the UK e.g. those with limited leave to remain as a partner or a skilled worker, will need to undergo further RTW checks. Part of your organisation’s policy on carrying out right to work checks should include a procedure for identifying the need for repeat checks, and carrying them out at the appropriate time.

Do I need to repeat checks carried out under the COVID-19 guidance?

The Home Office introduced temporary adjustments to right to work checks in light of the COVID-19 pandemic on 30 March 2020. These temporary adjustments allowed employers to carry out RTW work checks remotely. The ability to carry out COVID-19 adjusted checks came to an end on 30 September 2022. Retrospective checks are not required for employees whose RTW was checked using a COVID-19 adjusted check

Repeat right to work checks will however be needed for those employees who have a time limited statutory excuse. Any repeat checks should be carried out in the line with the Home Office guidance in force at the date of the check.

Do I need to carry out right to work checks on British employees?

It is important that employers avoid any discriminatory practices as part of their recruitment and on boarding process. Being selective about who you require to undergo a right to work check or making assumptions about a person’s nationality and/or immigration status could result in you inadvertently employing someone without the RTW or risk allegations of discrimination. Right to work checks should therefore be carried out on all prospective employees before they start work.

How can we help?

There have been various changes to right to work checks in recent years. Our immigration lawyers can offer a mini-audit of your on-boarding and record keeping procedures to ensure that you are up to date with the changes and are complying with government requirements. As part of the process, we can provide advice on areas of concern and any changes that should be implemented within your organisation to remain compliant. We can also provide bespoke guides to not only streamline the process but also ensure that those carrying out the checks have the confidence to do so. We also assist companies with challenging civil penalties for illegal working. If your organisation or someone you know needs any advice in relation to right to work checks and preventing illegal working, please get in touch.