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Right to Work Checks

UK employers are legally obliged to check that a job applicant is allowed to work in the UK before employing them – and can do so by conducting compliant Right to Work Checks. Businesses that fail to do so can face strict penalties and, in some cases, criminal charges may be brought.

WH Solicitors are experts in guiding businesses through the process of conducting compliant Right to Work Checks, from obtaining documents to making strong representations to the Home Office.

Get in touch today for help conducting compliant Right to Work Checks.

Right to Work Checks – The Law

All employers have a statutory duty to prevent illegal working in the UK. This duty is set out in sections 15 to 25 of the Immigration Asylum and Nationality Act 2006, section 24B of the Immigration Act 1971, and Schedule 6 of the Immigration Act 2016.

Under these provisions, organisations must check that prospective employees have the right to work in the UK before their employment begins. In addition to conducting checks, employers are also obliged to retain documentary evidence of an employee’s right to work in the UK.

Employers that fail to conduct compliant Right to Work Checks and who are subsequently found to be employing someone illegally could face civil penalties of up to £20,000 per illegal worker. Employers could even face an unlimited criminal fine and jail time of up to five years if they have or had reasonable cause to believe that an individual did not have the right to work in the UK yet still went ahead with their employment.

The penalties for employers holding a Sponsor Licence can also be very severe, and failure to conduct the proper checks could lead to sponsor licence enforcement action and even revocation – not to mention reputational damage.

What are Right to Work Checks?

A Right to Work Check involves reviewing prescribed documents that show an individual has permission to work in the UK. These checks allow employers to establish that potential employees are not disqualified from carrying out the work they are being considered for because of their immigration status.

Organisations that carry out Right to Work Checks as prescribed by the Government’s Code of Practice on Preventing Illegal Working have a statutory excuse against liability for civil penalties if they are then found to have employed someone who does not actually have the right to work in the UK.

How to Conduct Right to Work Checks

Compliant Right to Work Checks comprise of three basic steps: obtaining original versions of acceptable documents (or using the online checking service)checking that they are valid, and making and retaining copies of the documents.

Employers must be able to satisfy each of the required Right to Work Check stages to establish a statutory excuse, and failing to conduct any part of the checks in a compliant way could put you at risk of civil action should it later emerge that you have employed somebody whose immigration status disqualifies them from working in the UK.

Obtaining original documents

Documents proving the right to work in the UK should always be obtained before a prospective employee commences their employment. In cases where an individual is a current employee with limited leave to remain, fresh Right to Work Checks should be conducted before their existing period of leave expires.

Employers should either obtain original documents from a prospective employee in person, or otherwise use the Home Office’s online Right to Work Checking Service.

The original documents that can be accepted as part of a manual Right to Work Check are set out in the Home Office’s Right to Work Checklist and include passports, current immigration status documents, and certificates of registration or naturalisation as a British citizen together with documents giving a person’s permanent National Insurance number.

 Checking that documents are valid

Employers must check that the documents provided by a prospective employee are valid. This means checking that the correct features of the document (as described in List A and List B of the Right to Work Checklist) are present.

Employers conducting manual Right to Work Checks should also carefully examine the documents presented to them in the presence of the employee. The Home Office requires employers to identify and reject any documents where it is ‘reasonably apparent’ that the documents are not genuine or that they do not belong to the relevant individual.

All details should be carefully scrutinised to make sure that they match with the prospective employee’s details, and the documents provided should be original and not photocopies. Specifically, employers should check that:

  • the documents are genuine, original, unchanged, and that they belong to the prospective employee who has provided them;
  • the applicant’s right to work in the UK has not expired;
  • the photographs of the applicant are the same across all documents and bear their likeness;
  • the dates of birth are the same across all documents;
  • the applicant has permission to do the type of work you’re offering, for the relevant number of hours;
  • that any discrepancies between names on documents are explained through the provision of supporting records such as a marriage certificate or a divorce decree.

 

Making and retaining copies

Employers must make and retain copies of the documents they have used to verify that a prospective employee has the right to work in the UK. Both electronic and hardcopy versions are acceptable.

Employers should also be careful to keep a record of the date on which the Right to Work Check was conducted, and all of this evidence should be trained for the duration of the individual’s employment and two years after it ends.

Further checks must be conducted where an individual is subject to immigration control and whose immigration status changes.

How We Can Help?

WH Solicitors has extensive experience of acting on behalf of UK employers, and frequently assists with conducting Right to Work Checks.

From advising on the correct documentation to making strong representations to the Home Office in cases where it later emerges that an employee did not have the right to work in the UK, we provide businesses with peace of mind.

As expert immigration solicitors, we understand the pitfalls and challenges associated with conducting Right to Work Checks, and help our clients to act in compliance with the law whilst guarding their interests against the penalties for getting it wrong.

For more information, speak with our team today by calling (+44) 01483 608 786 or by emailing contact@whsolicitors.co.uk.

Right to Work Checks

FAQs

Yes – the Home Office provides an online Right to Work Checking Service. The online Right to Work Checking Service can be used by non-EEA nationals who hold biometric residence permits or biometric residence cards and EEA nationals who have been granted settled status under the EU Settlement Scheme.

All individuals must prove their right to work in the UK before employment can commence, however the following individuals do not need any further leave or permission from the Home Office to do so:

  • British Citizens (but not British Overseas Citizens, British National (Overseas) or British Protected Persons)
  • EU/EEA/Swiss nationals resident in the UK by or before 31 December 2020, and who subsequently apply to EU Settlement Scheme for pre-settled or settled status by 30 June 2021
  • Non-British nationals with Indefinite Leave to Remain/Settlement in the UK

All other individuals require a visa to work in the UK, and should not commence employment until the relevant proof of visa status has been given.

Employers can ask the Home Office to check a potential employee’s immigration employment status in the following circumstances:

  • where an employer is reasonably satisfied that their prospective employee cannot show the necessary documents because of an outstanding appeal, administration review, or application to the Home Office;
  • where a prospective employee has an Application Registration card;
  • where a prospective employee has a Certificate of Application that is less than 6 months old; or
  • where a prospective employee is a Commonwealth citizen who has been living in the UK since before 1988.

In such cases, the Home Office will issue a Positive Verification Notice to confirm that the applicant has the right to work in the UK. Employers must retain this document.

Following the end of the UK’s Brexit transition period and the freedom of movement with the EU, the rules for EU nationals have changed.

EU Nationals already resident in the UK as at 11 pm on 31 December 2020 have until 30 June 2021 to submit an application to the EU Settlement Scheme for pre-settled or settled status. Individuals who fall into this category have the right to work in the UK until 30 June 2021 regardless of whether they have made an application to the scheme or not.

EU Nationals who arrived in the UK after 31 December 2020 have no right to work unless, before arrival, they have obtained a visa that permits them to do so. These individuals are not eligible for the EU Settlement Scheme.

Employers will not be required to conduct retrospective checks on existing EU national employees after the 30 June 2021. After this time, the same new immigration rules will apply to both EU and non-EU nationals, and so employers who wish to recruit workers from abroad will need to hold a sponsor licence.

The contents of this webpage are provided for informational purposes only and are not intended to constitute legal advice. All information is correct as of the date of publication, and any individual or organisation should be careful to seek qualified advice from a specialist immigration lawyer before acting on any of the topics referenced by this content.