UK employers are legally required to conduct Right to Work Checks. The consequences for not performing these checks can be significant, with fines reaching as high as £60,000 and the possibility of criminal prosecution. In addition, the employer may be subject to other criminal measures, including the closure of his company.
If the employer carries out the checks set out in the Home Office guidance and the Codes of Practice, they will have what is known as a ‘statutory excuse’, meaning that if an individual is later found not to have the correct permissions, the employer can avoid penalties—provided that they completed the checks accurately and before employment began.
In other words, where the right to work check was carried out properly and before the worker was employed, if the Home Office subsequently found that the employer had employed a person who was not entitled to do the work in question, then the employer should not be penalised because of the illegal worker.
When should a right to work check take place?
Employers must check the right to work of each employee before the person starts working for them. This can be done at the interview stage or before the person's first day of work and includes checking the identity, nationality and, if applicable, the validity of the person's visa, ensuring that it allows the person to work in the job offered.
Right-to-work checks are an important part of the hiring process for all employers, especially those who hire skilled workers and those who have visas. Below is a detailed step-by-step guide to ensure Home Office guidelines are followed.
Types of Right to Work Checks
Employers in the UK have several methods available for verifying an individual’s right to work, and the appropriate type depends largely on the employee’s circumstances and immigration status.
One type of check includes manual check by the employer, using original documents in the presence of the holder. This type of verification can be carried out in regard to employees of all nationalities, but depends on the type of document on which the person relies to establish his or her right to work.
For British and Irish employees, employers can also use digital identity verification through ID validation if they have registered for this service with approved Identity Service Provider.
Employers can also check the validity of a worker's visa by the Home Office online check service This type of check must be done for certain workers as explained below.
In other circumstances, employers may not be able to use the online service and instead use the service employer checking service of the Home Office.
Conducting Manual Right to Work Checks
The basic process for manual checks involves several steps.
Employers must meet the prospective employee in person or via a live video link and review their original documents, which must be from List A or List B of the eligible documents in Appendix A of the guidance for employers on right to work checks. Documents will vary depending on the person's circumstances and may include a passport, birth certificate, naturalisation certificate or registration as a British citizen.
The employer must check whether the documents are genuine and unadulterated and whether the photograph matches the appearance of the person presenting the document.
If the applicant is not a British or Irish citizen, the employer should also check:
- дали датите на правото на кандидата да работи в Обединеното кралство са изтекли.
- whether the applicant is authorised to carry out the type of work for which they are employed (including any limit on the number of hours they can work, e.g. in the case of student visa holders)
- for students, the employer must also see evidence of their study time and holidays, as this will determine how many hours the student can work
Clear copies of the document(s) must be made, ensuring that the holder's details as well as any expiry dates, biometrics and immigration clearances are included on the copy.
The employer must then clearly note the date on which the check was carried out. This can be done by noting the date on the copy or by a separate document which can be shown to the Home Office on request. The employer must ensure that copies are kept in a secure place for the whole period of employment and for two years after the employee leaves.
Using ID Verification Technology Providers (Digital Right to Work Checks)
Employers can utilize Identity Document Validation Technology (IDVT) to conduct Right to Work Checks only for British and Irish citizenswho hold a valid passport (including Irish passport cards). The process involves obtaining proof of the potential employee's identity, checking that it is valid and that it belongs to the person presenting it.
Identity Service Providers (IDSPs) facilitate digital identity checks on behalf of employers, using ID validation technology.
The right to work, confirmed with the help of an identity service provider, will provide the employer with a statutory basis for discharge - the so-called statutory excuse. It is the employer's responsibility to obtain proof of the technological verification performed to validate identity documents from the provider of this service. The employer will only have a statutory excuse if the provider of these services has carried out their checks in accordance with Home Office guidance.
Online Home Office Right to Work Check
From April 6, 2022 employers must carry out online checks when a person holds a biometric residence card, biometric residence permit or border worker permit; physical documents can no longer be used as proof of right to work.
Employers should ask their employees to provide them with so-called share code.This code must be used when completing the online right to work check..
Steps for Conducting an Online Right to Work Check:
- Obtain a Share Code from the Individual.
- Use the individual's code and date of birth to check their work eligibility status through the online system.
- Verify the result of the online check and the details provided in the generated profile page.
- Make sure the photo on the online eligibility check is of the person applying for the job.
- Keep a copy of the document created and any notes from the check in a secure way (electronically or on paper) as evidence that the check has been carried out, for the period of employment and for two years afterwards.
When to contact the Home Office Employer Checking Service to check right to work
Employers should ask the Home Office to check the worker's status by the checking service for employers if the worker cannot provide proof of a valid visa or share code. This may be because the worker:
- has an appeal, review or application to the Home Office refused; or
- arrived in the UK before 1988 and has no documents proving his immigration status or his right to work; or
- has a digital or regular application certificate or application registration card.
When using this service, the employer will need to provide the worker's personal details and the case reference or identification number, if available. The employer will also need to see the worker's original registration card or application certificate if this is what they are checking.
If the worker is entitled to work, the Home Office will issue a positive verification notice to confirm that the worker is entitled to work, which will give the employer statutory excuse for a limited period of time. The employer must keep this document in case they are found to be employing illegal workers.
The follow-up check must be carried out before the expiry of the excuse statute given by the notice of positive check. Provided the employer has received a positive verification notice from the Employer Verification Service, it will continue to have a statutory excuse for the period specified in the positive verification notice unless it becomes aware that the employee is working illegally within that six-month period and continues to employ him or her anyway.
When to do follow-up right-to-work checks
Where a worker has a time-limited right to work and will continue to work at their current workplace, employers must carry out a follow-up check.
Employers need to make sure they keep track of visa expiry dates and schedule reminders for follow-up checks if necessary. Employers should conduct a follow-up right-to-work check on or before the date the worker's permit expires.
If a worker is unable to provide evidence that he or she has a continuing work permit when the employer conducts a follow-up right-to-work check, this does not necessarily mean that the worker is no longer eligible to work. If the worker has applied for an extension of his visa in time, he will take advantage of section 3C leavewhile his application is being processed, and can continue to work for his employer.
The employer must provide their employee with a reasonable opportunity to prove that they are still entitled to work. If unable to confirm the employee's right to work using a share code or manually using original paper documents, the employer may contact the Employer Checking Service to confirm the employee's right to work.
Conclusion
Carrying out thorough right to work checks on all workers, including visa holders, is essential to comply with UK immigration laws. Recent Home Office compliance data shows that there has been a significant increase in the number of suspended and revoked sponsor licences compared to previous years, which employers should note. By ensuring that right to work checks are carried out in a timely and correct manner, employers can protect their businesses from potential sanctions and ensure they are employing legally compliant workers.
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