Right-to-work checks

Why checks are necessary

It's a criminal offence for an employer to employ certain individuals aged 16 or over who don't have permission to work in the UK. Employers (or managers they employ) can also be liable to pay a civil penalty (see below).

However, employers can establish what's called a statutory excuse against a civil penalty by carrying out a compliant right-to-work check.

When a check must be done

You must do a prescribed right-to-work check if you directly employ the following types of staff:

• An employee under an employment contract
• A worker under a contract to provide services
• An individual working as a sub-contractor under an agreement to provide their services

We recommend asking all applicants to bring evidence of their right to work to a final interview. Otherwise, the results of a check must be obtained before the day the successful applicant starts working for you.

Note: A check must also be done if you operate an online matching service that gives details of individuals who can provide services to your potential customers on your behalf (e.g. like Uber, Task Rabbit and other businesses using similar online business models). If so, a prescribed right-to-work check must be done on all the individuals being offered to your potential customers.

Penalties

If you directly employ someone who does not have a right to work in the UK, you may face a penalty.

Penalties can also apply if you're not the immediate employer but are another employer in a contractual chain. This is designed to prevent businesses from avoiding right-to-work responsibilities by supplying workers through a chain of contractors, agencies, or substitution arrangements. These arrangements include:

• Sub-contracting: A person is contracted to provide work or services to a customer/client. They enter into a contract with another employer who provides the staff to perform the contract.
• Substitution: A contractor is contracted to provide work or services. The contractual arrangement allows them to substitute their work to another individual in their place.
• Online matching: An online matching service gives details of a service provider to a customer/client, and that service provider enters into a contract with the customer/client.

You could face, for example:

• A criminal conviction and an unlimited fine and/or prison sentence
• A civil penalty of up to £60,000 per illegal worker
• Disqualification as a director.

Avoiding liability (the statutory excuse)

To establish a statutory excuse against liability for illegal working, you should do the following before work starts:

If you directly employ the employee, worker or contractor:

Carry out a right-to-work check according to the following government guides:

• Code of practice on preventing illegal working (which also explains how a civil penalty is calculated, including mitigating factors that may reduce the amount)
• Employer's guide to right to work checks (which provides more details on how to perform the checks).

If you're not the immediate employer:

Create a written statement setting out who is responsible for carrying out right-to-work checks. See the Code of practice on preventing illegal working for more information.

Discrimination

You should also take care not to discriminate while carrying out your checking responsibilities. This can include:

• Only performing checks on people who appear to be migrants.
• Asking some people for proof of their right to work, but not others.
• Making assumptions about a person's right to work or immigration status based on their colour, nationality, ethnic or national origins, accent, surname or the length of time they have been resident in the UK and/or on their willingness to demonstrate it.
• Treating applicants either more or less favourably because they have an eVisa.

The Home Office have produced a Code of practice that you should follow.

Getting proof of the right to work

To prove an applicant's right to work in the UK, they'll need to show you, or have, one or more of the documents from categories known as List A and List B. These are set out in the government's Right to work checks: an employer's guide.

Documents from List A mean that they have a continuous right to work in the UK.

Documents from List B mean they have a time-limited right to work in the UK (either until immigration permission ends or up to a limit of 6 months). You'll have to do a follow-up check.

There are different ways to check an individual's right to work, depending on their country of citizenship.

If you're unable perform the initial or follow-up checks using these methods, you must use the Home Office Employer Checking Service.

British or Irish citizens

You can check their right to work in the UK manually, or by using a registered service provider – these are referred to in the government guidance as 'Right to work digital verification service providers' (RtW DVSP).

Manual checks

These require you to:

1. Obtain one or more of the original documents from List A or List B (this will usually be a passport).

2. Check the document to establish it is genuine and that the person presenting it to you is the prospective or existing employee, worker or contractor. See the Employer's guide to right to work checks for specific details.

3. Photocopy the documents and retain them. See the Employer's guide to right to work checks for specific details about what needs to be copied. It's recommended that you write something like Date on which this right-to-work check was made: [insert date] on each copy. You must then securely keep the copies either electronically or as a hardcopy for the duration of the employment and for 2 years after it ends.

Note:

• To carry out a manual check correctly, including knowing which types of documents are acceptable, as these can change, the Home Office recommends using their checklist or their online interactive tool, which will take you through the process.
• If someone gives you a false document or a genuine document that does not belong to them, you should report it to the Home Office.

Using a RtW DVSP

The provider will use identity document validation technology to get evidence of the prospective or existing employee, worker or contractor's identity, checking that it is valid and belongs to the person who is claiming it.

It can be used for British and Irish citizens who have a valid passport (including Irish passport cards), or digital versions of certain other government documents.

The RtW DVSP must be listed on the government register. Not all providers can carry out right-to-work checks – they must have a note on that register stating Right to work.

Warning: You must not treat the prospective or existing employee, worker or contractor less favourably if they do not hold a valid passport, or don't want you to prove their identity using an RtW DVSP. You must perform a manual check instead.

If using a RtW DVSP, keep a clear copy of the check output for the duration of the candidate's employment and for 2 years after it ends.

You still need to confirm yourself that the details on the output of the RtW DVSP check (e.g. photo) match the person you're employing – i.e. you need to be sure that the person hasn't used someone else's documents to pass the check.

You can do this in person, by video call or via facial recognition technology if the RtW DVSP you've used provides it. If using the latter, you must keep a copy of the comparison as well as the check output. If the technology can't verify the image, you need to give the person a reasonable chance to verify their identity.

Non-British or non-Irish citizens

Online checks

You can use the Home Office online service to check a candidate's right to work. To use the service, they need to get a right to work share code. A share code isn't available to everyone - generally only those with a biometric residence permit/card or passport containing an eVisa can get one.

The usual process is as follows:

1. The prospective or existing employee, worker or contractor gives you a right-to-work share code. The code is usually 9 digits.

2. You then enter this code and their date of birth on the online service.

3. Check that the photograph matches them (this can be done with them present in person or via a video call).

4. Keep evidence of the check for the duration of their employment and for 2 years after it ends. This should be the profile page confirming their right to work - the page that includes their photo and date on which the check was conducted.

Note:

• If you employ someone based on the online check, but it is reasonably apparent from the photograph that they are not the same person, you may face a civil penalty or risk being found guilty of a criminal offence.
• You can't demand that they give you a share code. If they can't or won't give it to you, you can't treat them any differently and you must carry out a manual check instead (see above).

The Employer Checking Service and follow-up checks

You must use the Employer Checking Service to maintain or establish a statutory excuse if:

• A prospective employee, worker or contractor cannot show you their documents or online immigration status before starting to work for you.
• They initially gave you a document from List B (i.e. they have a time-limited right to work), and they're unable to give further evidence that their right to work will continue before it ends.

For example, they may have technical issues getting a share code or using a digital service to check their right to work or prove they've extended their permission to work in the UK.

The Employer Checking Service will usually either give you one of 2 responses:

• Positive Verification Notice: this usually gives you another 6 months before needing to do another check.
• Negative Verification Notice: this usually means the candidate or employee no longer has a right to stay and work in the UK.

Follow up checks for documents in list B

If a prospective employee, worker or contractor gives you a document from List B (i.e. they have a time-limited right to work), you'll have to do follow-up checks to show that their permission to work in the UK can continue.

Note:

• These checks must be done before their permission to work in the UK ends.
• Your statutory excuse will end on the same date that their permission ends.
• The required follow-up check should be performed according to the rules and government guidance that existed at the time the initial check was made.

If they are unable to give you the required evidence that their permission to work in the UK can continue (i.e. by using the online service, a share code or manually), your statutory excuse will automatically continue for up to 28 days from the date their permission to work in the UK ends, if:

• you previously carried out a manual or online check before the employee started working for you; and
• on the date their permission to work in the UK ends, you're reasonably satisfied that they have a pending application, appeal or administrative review, to extend or vary the date of their permission.

This will give you time to use the Employer Checking Service to get a positive verification notice (which will mean you can wait 6 months before having to perform another check), or perform a Home Office online check (if, for example, there was a technical issue getting a share code, which has been resolved).

This period will end on the day you receive any negative verification notice. If your prospective employee, worker or contractor provides evidence that their application, appeal or review to extend their permission was successful during either the initial 28-day or 6-month positive verification notice period, you must then perform a check in the normal way.