What is a Right to Work Check?
A Right to Work check (‘RTW’) is a mandatory process that all UK employers must carry out to ensure that all their employees have the right to live and work in the UK
The Right to Work requirements are set out under Sections 15 – 25 of the Immigration, Asylum and Nationality Act 2006, and are supported by an Home Office guidance which provides regular updates in line with changes of Immigration Rules.
Employers must stay informed on the latest updates to ensure compliance. By conducting compliant Right to Work checks, employers ensure they are hiring individuals who are legally permitted to work. In cases where non-compliance is alleged, evidence of a compliant check provides employers with a strong defence against proposed enforcement actions.
Employers are responsible for preventing illegal working by conducting Right to Work checks before hiring employees, ensuring they are not disqualified due to their immigration status.
Why Right to Work Checks Are Essential for Employers
It is crucial for employers to perform thorough and compliant Right to Work checks before an individual commencement of employment. The Home Office guidance on RTW checks provides employers with a statutory excuse (legal protection) against a civil penalty in the event they unknowingly employ an illegal worker.
The UK government increased fines for employers hiring individuals who are illegal in the UK. The fine has jumped from £20,000 per illegal worker to £45,000 for first-time offenders and £60,000 for repeat offenders. These increases in penalties could severely impact a business’s cash flow and operations. Therefore, it is critical for employers to ensure they meet all requirements for conducting RTW checks.
Who Needs a Right to Work Check?
The Right to Work check is a legal requirement for all employers in the UK, regardless of the size or type of business. Employers must verify that every worker in their company has the legal right to work in the UK. RTW checks must be part of your recruitment and onboarding procedures. It is essential that these checks be carried out on all potential employees, regardless of nationality, race, or ethnicity. Failing to perform checks indiscriminately can lead to complaints of unlawful discrimination.
The Right to Work check must be completed before any individual begins employment.
Employer Responsibilities for Right to Work Compliance
In compliance with the Home Office guidance on RTW checks, there are 4 ways to conduct RTW checks:
1. Manual Document-based check
To carry out a manual document-based RTW check, follow these three steps before employment begins:
- Step 1: Obtain: Collect original documents from the prospect employee (e.g. original passport, original permanent residence card, etc.)
- Step 2: Check: Verify that the documents are genuine and belong to the person presenting them.
Ensure the individual is authorised to do the type of work you are offering. When checking:
-
- Ensure photographs and dates of birth match across documents and the person’s appearance to detect impersonation.
- Confirm that the person’s UK permission expiry dates have not passed.
- Review any work restrictions (e.g., students who are only permitted to work during vacation periods). If applicable, obtain documentation of their academic terms.
- Verify that the documents are unaltered and belong to the individual.
- If there are discrepancies in names across documents, ask for supporting evidence, such as a marriage certificate, divorce decree, or deed poll.
- Step 3: Copy: Make a clear, unalterable copy of the document(s) and store it securely (either electronically or in hard copy).
Ensure you record the date the check was carried out.
Copies must be retained for the duration of the individual’s employment and for two years afterward, after which they must be securely destroyed.
2. Home Office online right to work check
A Home Office online RTW check provides a statutory excuse if the individual is later found to be working illegally.
The online service, titled ‘Check a job applicant’s right to work: use their share code – GOV.UK’, allows employers to verify an individual’s status by entering a share code and the person’s date of birth.
Note that the online check is not available for all individuals, as it is only applicable to certain types of immigration documentation. For those who cannot be verified online, a manual check must be conducted.
The online service is part of the UK’s digital shift in immigration processes. For example, holders of Biometric Residence Cards (BRC), Biometric Residence Permits (BRP), and Frontier Worker Permits (FWP) must use the online service to prove their right to work.
Employers should not accept physical BRC, BRP, or FWP cards.
3. Employer Checking Service
In certain situations, you will need to contact the Home Office’s Employer Checking Service (ECS) to verify an individual’s eligibility to work. This is required when:
- An individual presents a document confirming an outstanding application or appeal (e.g., a Certificate of Application or acknowledgement letter for the EU Settlement Scheme).
- You are unable to conduct a manual or online check due to the nature of the documentation.
You will only have a statutory excuse if you receive a Positive Verification Notice (PVN) from the ECS. If a Negative Verification Notice is issued, no further action is needed.
The ECS typically responds within five working days, and you must notify the individual you are checking.
4. IDSP checks
Since April 2022, employers can use an Identity Service Provider (IDSP) to carry out digital identity verification for British and Irish citizens holding valid passports. This service enables employers to verify a person’s identity and right to work digitally, enhancing the process’s accuracy and security.
To use this service, ensure that the IDSP meets the Home Office’s required standards for digital verification. A Medium Level of Confidence is the minimum recommended standard. You must retain a copy of the digital identity verification for the duration of the individual’s employment and for two years after their employment ends.
If an IDSP is used for British or Irish citizens with valid passports, the employer gains a continuous statutory excuse. However, this service is not available for individuals who do not hold a valid passport or do not wish to use the IDSP service. In those cases, a manual document-based check should be conducted.
Employers using IDSPs must not treat individuals who do not wish to use this service unfairly and must offer alternative ways to verify their right to work.
How Our Solicitors Can Help with Right to Work Compliance
Strengthen your business with Right to Work Audit here .
Our audits are a preventative measure, ensuring your business is compliant with UK immigration law. (Choose between remote audit and onsite audit)
Protect your business with Right to Work Training here .
Our training is designed to equip your team with the essential skills to ensure compliance with UK immigration law.
