Right to work checks: An essential guide for employers and HR professionals

What is a right to work check?

A right to work check is a process that employers use to verify that an individual is authorized to work in the UK. The check is typically conducted as part of the hiring process and may involve verifying an individual's identity and immigration status.

The UK government has a strict set of guidelines that businesses must follow to ensure compliance. While many employers manage this area of new hire administration themselves, it can soon become onerous, and many organizations move this process over to third parties. 

There are a number of ways to check an employee’s right to work. These are:

• Manual right to work checks
• Digital right to work checks
• Online right to work checks
• Employer Checking Service

All employers are required to carry out this check when employing someone to ensure they are legally allowed to do the work in question for you.

Are right to work checks mandatory?

In the UK, the right to work check is mandatory by law and employers must conduct such checks on all new hires. The purpose of the check is to ensure that the individual has the legal right to work in the country and to prevent the employment of illegal workers.

In light of this, the government provides several ways of carrying out these right to work checks. In this blog, we will cover the protocol that hirers must follow in order to create and maintain a record of the processes.

Penalties for non-compliance

The UK applies tough sanctions on businesses that are found to be employing individuals who are not eligible to work in the country. While workers face fines and even prison time, the penalties that employers face are equally severe, with fines of up to £20,000 per breach, prosecution, cessation in trading, and reputational harm.

While the majority of organizations abide by the government rules on right to work checks, there is a small minority that fall through the cracks. But what are the consequences of non-compliance with right to work checks? 

Performing an employer’s right to work checks is a legal requirement, so if you’re found to have not followed the correct procedures, it could result in serious ramifications for your business.

With the latest government legislation, businesses found to be in breach of illegal working rules could face one or more of the following:

• Criminal prosecution
• Fines of up to £20,000 per breach
• A County Court Judgement
• Disqualification of company directors
• The suspension or removal of a Sponsor License
• Difficulties in obtaining credit
• Negative press and reputational harm
• Put on the Home Office’s civil penalty offender list
• The cessation of trading

Every right to work check needs to be carried out in line with the current ruling. Right to work checks that aren’t compliant with up-to-date legislation could result in drastic enforcement action against your business.

So it pays to be vigilant over hiring procedures when checking employees and their right to work in the UK. This involves conducting basic right to work checks on all your UK-based workers.

Ensuring the right procedures are in place to check a job applicant’s right to work in the UK, prove documents are valid, and carry out regular re-checks where necessary should be a key priority in the pre-hire stage.

How long do Right to Work Checks take?

The length of time for a right to work will depend on the circumstances of each worker, but one check will usually take between one to four weeks.

Who needs a Right to Work Check?

All workers should be subject to a right to work check prior to any offer of employment in the UK. This check will ensure that the individual is legally entitled to carry out the work for you. Delaying this process until an employee’s onboarding is too late - this check will verify if they have the right legal status to work.

It’s worth noting that, as an important part of the pre-employment checks, right to work checks are carried out during the recruitment process and are applicable to all prospective employees - regardless of nationality, race, or ethnicity. 

Types of Potential Hires and their required proof of Right to Work

There are various requirements to prove right to work, depending on the circumstances of the individual. The UK government has divided the workforce into two main groups - those with unlimited leave to remain (for example, those born in the UK), and those with limited leave to remain (for example, those who have entered the UK via an application to the Home Office).

Here are the various documents required for these groups, as directed by the UK government.   

List A (Unlimited leave to remain) – British Citizens

A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK.

A birth or adoption certificate issued in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.

A certificate of registration or naturalization as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer

List A (Unlimited leave to remain) – ILR Holders

A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey, or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted unlimited leave to enter or remain under Appendix EU to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.

A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK

List A (Unlimited leave to remain) – European Nationals

A passport or passport card (in either case, whether current or expired) showing that the holder is an Irish citizen.

A birth or adoption certificate issued in the Channel Islands, the Isle of Man, or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.

List B (Limited leave to remain) – Group 1

A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question

A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted limited leave to enter or remain under Appendix EU to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.

A current immigration status document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.

List B (Limited leave to remain) – Group 2

A document issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules on or before 30 June 2021 together with a Positive Verification Notice from the Home Office Employer Checking Service.

A Certificate of Application (digital or non-digital) issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules (known as the EU Settlement Scheme), on or after 1 July 2021, together with a Positive Verification Notice from the Home Office Employer Checking Service.

A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey, or the Isle of Man showing that the holder has made an application for leave to enter or remain under Appendix EU (J) to the Jersey Immigration Rules or Appendix EU to the Immigration Rules (Bailiwick of Guernsey) Rules 2008, or Appendix EU to the Isle of Man Immigration Rules together with a Positive Verification Notice from the Home Office Employer Checking Service.

An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.

A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, that indicates that the named individual may stay in the UK and is permitted to do the work in question.

How to Conduct Right to Work Checks

New legislation brought in from 1 October 2022, means that all businesses are required to carry out their right to work checks either in person or through an Identity Service Provider, (otherwise known as an IDSP). There are a number of factors that influence the types of checks carried out, for example, the worker’s nationality. However, as an employer, you do not have the autonomy to choose how the worker proves their right to work. 

Carrying out best practices for your right to work processes means ensuring your systems are compliant and up-to-date. For many businesses, these checks are part of a centralized HR function - where professionals can develop a system that is in line with legislation.

Other businesses that experience multiple monthly hires prefer to outsource this function to a specialized third party. This is a time-saving device, and normally offers a quick turnaround on check results, helping time-poor departments focus on other aspects of their work. While many pre-employment checks may be carried out by third parties, it’s important that this method is legally compliant and does not expose the business to vulnerabilities. As the party outsourcing this service, make sure your checking partner is reputable and responsible.

However an organization carries out its checks, the desired outcome should be a candidate who is eligible to work in the UK, and a record of the checks that provide evidence of this.

Below, we outline the ways of verifying someone’s right to work, and the checklists to help record the findings of each hire. These right to work checklists detail the types of documents that are acceptable for checking an employee’s right to work and how long the check is valid for. 

Manual Right to Work Checks

Manual right to work checks can take place if you are in a physical, face-to-face meeting with the individual. The official right to work checklist issued by the UK government outlines what you need to do in these events, as well as the documentation that you need to request - this is covered in the section above: “Types of Potential Hires and their required proof of Right to Work“. As outlines in this section, there are two groups ‘List A’ and ‘List B’. List A is for those with a permanent right to work in the UK - such as UK nationals and those with Indefinite Leave to Remain status, while List B is for those with time-limited permission, such as EU nationals coming to work in the UK after January 2021.

Right to Work Step 1 – Check the candidate has the correct documentation

During a manual right to work check, the employer is required to obtain original documents from one of the two lists. The first lists the candidate’s passport, birth certificate, adoption certificate, certificate of naturalization in the UK, or immigration status document. The second list refers to candidates who are applying for leave to remain, and the documents that are generated from this process by the Home Office.

Right to Work Step 2 – Verify and make copies of documents

The next step is to check the validity of the documents provided. Employers are required to check that the individual listed in the document is the person presenting them. There are a number of ways of verifying - the photos are consistent and match the person’s identity, there are no signs of tampering, any name changes can be explained by supporting evidence (for example, a marriage certificate), and the documents have not expired. Copies of documents then need to be made in a non-alterable format (a photo or pdf, for example). Registering the dates of when these copies were made must be done and held in a secure file.

Right to Work Step 3 – Retain a copy for your records

You must make a clear copy of each document in a format that cannot manually be altered and retain the copy securely: electronically or in hardcopy. You must also retain a secure record of the date on which you made the check. Simply writing a date on the copy document does not, in itself, confirm that this is the actual date when the check was undertaken. If you write a date on the copy document, you must also record that this is the date on which you conducted the check.

Online Right to Work Checks

In certain circumstances, employers have the option to use a Home Office online check service. This can take place if the individual is in possession of either one of the following:

• A biometric residence permit (BRP) 
• Biometric residence card (BRC)
• Pre-settled or settled status under the EU Settlement Scheme 
• Frontier worker permit (FWP)

In fact, since 6 April 2022, BRP, BRC, and FWP holders only have this option to show evidence and employers are no longer able to use physical BRPs, BRCs, and FWPs to check someone’s right to work.

In order to progress with this method, the worker has to give consent for the employer to carry out the online check. To carry out an online right to work check, the employer will need the applicant’s date of birth and a right to work share code, which they can obtain from the government website by inputting their immigration details. The code is then shared to view data via the online service. Completion of this check is done on confirmation from the online service of the job applicant’s right to work details.

Right to work Step 1 - Obtain a share code

A worker’s consent for this check to be carried out will generate a share code. The employer will also need the worker’s date of birth

Right to Work Step 2 – Verify photographic identification

A photograph should be provided, which should be checked and matched up with the likeness of the candidate. 

Right to Work Step 2 – Retain a record of the check

Make a clear copy of the confirmation from the online check and store this digitally or as a hard copy for the length of the individual’s employment and two years after employment ceases. 

‍Digital Right to Work Checks through IDSPs

Employers also have the option to use tech such as Identity Verification and Tracking (IDVT)  to verify an individual’s permission to work. This option is usually carried out by third parties on behalf of the hiring organization.

IDVT is a process that involves verifying the identity of an individual and ensuring that they are eligible to work in the country. In the UK, the IDVT process typically involves checking identification documents, such as a passport or national ID card, to confirm the individual's identity and immigration status. 

The IDVT process helps to minimize the risk of employing illegal workers and to protect the business from potential legal consequences. This can be carried out through the use of an Identity Service Provider (IDSP).

An IDSP is usually a certified third-party service provider able to conduct remote identity checks on an individual and verify their documentation. Employers will use these services to help with the administrative workload and maintain legal standards.

The guidance on digital right to work checks states that it’s the employer’s responsibility to obtain the IDVT check from the IDSP. The Home Office recommends that checks are ‘medium level of confidence’ as a minimum standard. As long as businesses keep to this guidance, they can rely on the statutory excuse in the event of a civil penalty.

Right to Work Step 1 – Verify that the IDVT documents are from the individual

This means you need to check the digital photo supplied matches the identity of the candidate, and details on the documents match up with those written elsewhere.

Right to Work Step 2 – Retain a record of the right to work check

Your results from the IDSP need to be retained and stored safely and securely throughout the entire employment of the individual, and for two years after their employment has ended.

Things to watch out for during the Right to Work check

In very rare instances, breaches may occur through workers providing false documentation. In this situation - and if employers can prove they carried out the correct procedures and checks in place - they may be able to rely on a statutory defense against any allegations of non-compliance.

However, there are other things to be mindful of when it’s time to check an employee right to work. These include:

Problems with documents

In some circumstances, an individual will experience delays in processing their paperwork or have an application or matter such as an appeal pending with the Home Office.

If an employee is still waiting on the Home Office to process their application - and this paperwork was filed before their previous leave expired, businesses may still be able to obtain a pass from the checking service.

• The individual is a Commonwealth citizen who has been resident in the UK since before 1988.
• The individual has Application Registration Card.
• The individual has Certificate of Application less than 6 months old.

If the job applicant cannot show their documents

The Employer Checking Service, or ECS, is a free-of-charge service provided by the Home Office. This is where employers are able to conduct the right to work employer checks on individuals who are not able to use an online check or are not in possession of the usual documentation required. Reasons for this may be that the individual is waiting on a decision by the Home Office or their arrival to the UK was prior to 1989, and no official documentation exists.

‍Follow-up checks

Follow-up checks are required to be carried out when the document evidencing their permission to work expires. This is why it is crucial to make clear, accessible records of workers in the initial right to work. These expiry dates need to be flagged so the organization can be alerted near to this date. 

Right to work check after change of sponsored role

The Home Office guidance emphasizes the importance of conducting right to work checks for sponsored workers when they commence a new role, even if they are continuing with the same sponsor. It is essential to perform this check after the UKVI (UK Visas and Immigration) application has been approved. This measure ensures compliance with the necessary regulations and maintains a thorough approach to verifying the right to work status of sponsored employees.

Conclusion

While there are four key options to check an applicant’s right to work, businesses must periodically review which one is the best choice for them. Small businesses may be able to keep up with the administrative tasks of compliant checks, however as organizations grow, so does the challenge of remaining in control of this area.

Start-ups and scale-ups in all sectors will experience extremely rapid periods of growth. And large organizations with multiple hires a month will have to develop slick processes within their hiring and HR departments. 

While an in-house checking process is possible with the right people and the right tech, many high-growth businesses prefer to outsource this task to qualified third parties. These service providers will take on the responsibility of obtaining and verifying the qualifying documents and help with the filing and storing of copies. Usually, these providers will also carry out other relevant pre-hire checks such as criminal checks and character reference checks. It’s an easy option for what is a time-consuming, but necessary, hiring process, and can help businesses scale faster, more easily, and with far less risk.

How Veremark can help

Veremark specializes in right to work checks, as well as many other pre-hire and employment screening background checks. We carry out countless employee right to work checks for some of the UK's best workplaces to ensure that this area of the hiring process is 100% compliant. Every stage of our processes is GDPR-compliant and digitally auditable, so organizations are able to outsource this important task with complete confidence.

We provide accuracy and speed, minimizing the time to hire for HR and recruiting departments all over the world, and ensuring both employer and candidate enjoy a digitally seamless and enjoyable user experience from start to finish.