Employer Right to Work Checks

Employers in the UK have a responsibility to ensure that anyone that they employ has a legal right to work in the UK.  Employers must ensure that appropriate right to work checks are carried out on all potential employees before employing them, regardless of their nationalities.

The Immigration, Asylum and Nationality Act 2006 provides that an employer may be liable for a civil penalty if they employ someone who does not have the right to undertake the work in question. On 16th May 2014, the maximum Civil Penalty increased to £20,000. In addition, employers may also commit a criminal offence if they knowingly hire a person who has no right of work in the UK. If convicted, they face a custodial sentence of up to two years and/or an unlimited fine.

The law gives employers a statutory excuse against liability for a civil penalty.  This statutory excuse can be relied upon where the Home Office finds that the employer has employed someone who does not have the right to work, but the employer is able to demonstrate that they have correctly conducted document checks as required.  If a statutory excuse applies, the employer will not receive a civil penalty for employing an illegal worker.

Right to work checks: a 3 step process

Employers must conduct right to work checks on all potential employees before employing them. They should not make assumptions about a person’s right to work in the UK or their immigration status on the basis of their colour, nationality, ethnic or national origins, accent or length of time that they have been resident in the UK.

There are 3 stages to conducting a right of work check:

Stage 1: Obtain original versions of one or more acceptable documents

The acceptable documents are set out within Home Office guidance in 2 lists – List A and List B. List A contains the range of documents which may be accepted for a person who has a permanent right to work in the UK. List B contains the range of documents which may be accepted for a person who has a temporary right to work in the UK.  Employers must obtain original documents from either List A or List B.

Stage 2: Check the validity of the document(s) in the presence of the holder

Whenever an employer checks the validity of a document, they must do this in the presence of the document holder, either physically present in person or via a live video link. The employer must be in physical possession of the original documents.

Employers need to ensure that all photographs match the appearance of the employee, all dates of birth and signatures match, and that the expiry dates of leave to enter or remain in the UK have not passed. If the family name or other personal details do not match, then further proof of the reason for any discrepancies must be requested.

When conducting checks, if the employer is presented with documents indicating that the holder is a student with a limited right to work in the UK during term time, they should obtain further evidence of the student’s academic term and vacation dates.

Stage 3: Make and retain clear copies and record the date when the check was conducted

Employers must keep a record of all documents that have been checked, electronically or in hardcopy. The record must be retained for not less than two years after the employment has come to an end.

When to conduct checks

Employers are required to carry out an initial right to work check on all potential employees before employing them.  If the employee provides acceptable documents from List A and is accepted as a person who has a permanent right to work in the UK, the employer is not required to carry out any further checks on this person.

However, if there are restrictions on the employee’s right to work in the UK, a follow up check will need to be carried out before the employee’s permission to be in the UK and to work expires.

Since 16th May 2014, employers are not automatically required to conduct checks every 12 months following the initial right to work check. A follow-up check will only be required when the employee’s permission to be in the UK and to work expires.  When certain documents are presented, checks will need to be made with the Employer Checking Service (ECS), i.e. a Certificate of Application has been presented which indicates that work is permitted and which is less than six months old.

The statutory excuse will continue from the expiry date of the employee’s permission for a further period of up to 28 days to enable the employer to obtain a positive verification with the ECS. This period of 28 days does not apply for the initial right to work check before the employee’s employment commences. In such circumstances, the employer must delay employing the migrant until they have received a positive verification notice with the ECS.

Updated UKVI guidance in December 2014

In December 2014, UKVI updated its guidance as follows:

• It is confirmed that for non-EEA national workers where the Residence Card, Permanent Residence Card, Accession Residence Card or Derivative Residence Card are endorsed on their passport, that passport may be current or expired. However the Residence Card, Permanent Residence Card, Accession Residence Card or Derivative Residence Card itself must be current and the employer must still check that both documents belong to the worker;
• Further clarification is provided in relation to the work placement rules for international students in a full appendix to update the guidance;
• The guidance has also been updated in respect of Transfer TUPE transfers and changes to the constitution of corporate employers. It is also confirmed that a check is not necessary when there is only a change in the legal constitution of the organisation, e.g. from a private limited company to a public limited company;
• The guidance also provides details of the new arrangements for making an enquiry of the Employer Checking Service (ECS). This should make it easier for employers to know when to conduct ECS checks and then to make the enquiry electronically.

Contact Us

For further advice in relation to right to work checks or challenging a civil penalty, contact our immigration barristers and lawyers in London.