Checking employee right to work in the UK

As you will know, to ascertain whether an individual has the right to work in the UK, and to prevent illegal working, employers should carry out right-to-work checks. These checks should be carried out against prospective employees in advance of employment, although the Home Office guidance advises that employers can carry out the checks either on the same day employment starts before any work is carried out, or a reasonable time in advance. Care needs to be taken to avoid carrying out these checks too far in advance because an individual’s right-to-work status could change within this period.

Check all prospective employees

Organisations need to ensure they are carrying out these checks against all prospective employees, including those who are British or Irish. This will remove the risk of discriminatory treatment and will prevent mistakes being made about permission to work where the individual is wrongly assumed to be British.

Checking documents 

You must either check the validity of the documents in the presence of the holder and be in physical possession of the original documents, or use the temporary covid-related digital right to work checks, which enables employers to check right to work documentation remotely.

The responsibility for checking documents is yours. You cannot rely on a third party – an agency, for example, to check documents although you can use third parties to provide technical knowledge or equipment on making checks.

New system

Whilst identity checks for UK and Irish citizens can continue to be completed manually (e.g. obtain/scan/store physical copy of an employee’s passport), the government introduced temporary adjusted checks for ID documents during the Covid pandemic, temporarily eliminating the need for in-person checks. This has been available since March 2020 to allow employers to screen and onboard new employees whilst minimising exposure to the virus.  It alleviated the practical difficulties of manually checking documents for employers who were working remotely, but was only meant to be a temporary measure. 

A permanent system using new technology will be introduced from 1 October 2022. This will enable checks to continue to be conducted remotely but with enhanced security. In the meantime, the temporary digital checks remain in place. The strategy is hoped to provide long-term, post-pandemic benefits.

Statutory excuse

To ensure employers can claim the “statutory excuse”, there are three steps they must complete when carrying out right to work checks. These are

1. obtain original right to work documents from the individual

2. check the validity and authenticity of the documents in the presence of the individual

3. copy the documents and keep a secure, dated copy which includes the date for follow-up checks.

Where it is reasonably apparent that a document is false, you will be liable for the civil penalty. This means that a person who is untrained in the identification of false documents, examining it carefully, but briefly, and without the use of technological aids could reasonably be expected to realise that the document in question is not genuine.

You will not obtain a statutory excuse if:

•             the check is performed by an individual who is not employed by you;

•             it is reasonably apparent that the person presenting the document is not the person referred to in that document, even if the document itself is genuine.

You may be liable to prosecution if you know or have reasonable cause to believe that the individual does not have immigration permission to work;

•             you know that the individual is not permitted to undertake the work in question; or

•             you know that the documents are false or do not rightfully belong to the holder.

Record keeping 

You must keep a record of every document you have checked. This can be a hardcopy or a scanned copy in a format which cannot be manually altered, such as a jpeg or pdf  document. You should keep the copies securely for the duration of the person’s employment and for a further two years after they stop working for you. You should also be able to produce these document copies quickly in the event that you are requested to show them to demonstrate that you have performed a right to work check and retain a statutory excuse.

You must also make a note of the date on which you conducted the check. This can be by either making a dated declaration on the copy or by holding a separate record, securely, which can be shown upon request. This date may be written on the document copy as follows: ‘the date on which this right to work check was made: [insert date]’ or a manual or digital record may be made at the time you conduct and copy the documents which includes this information. You must be able to show this evidence if requested to do so in order to demonstrate that you have established a statutory excuse. You must repeat this process in respect of any follow up check. You may face a civil penalty if you do not record the date on which the check was performed.

Time-limited permission to work 

You need to recheck the right to work of those individuals who have time-limited permission to work in the UK. This means that you need to do a follow up check when the documents provided by the employee for the initial pre-employment check were from List B. List A documents do not need a follow up check.

You should do the follow up check when their previous permission comes to an end. When conducting follow-up checks, you may use either the manual right to work check or the online right to work check where applicable, irrespective of the type of check you conducted originally, before employment commenced.

The frequency of these follow-up checks depends on whether the documents you are provided with are from Group 1 or Group 2 of List B.

Group 1 documents provide a time-limited statutory excuse which expires when the person’s permission to work expires. This means that you should carry out a follow-up check shortly before permission which demonstrates their permission to work expires.

Group 2 documents provide a time-limited statutory excuse which expires six months from the date specified in your Positive Verification Notice. This means that you should carry out a follow-up check shortly before this notice expires. 

List A documents:

List B documents:

List B Group 1 – documents where a time-limited statutory excuse lasts until the expiry date of permission to enter or permission to stay

List B Group 2 – documents where a time-limited statutory excuse lasts for six months

Manual checks

You must complete three stages of the check to establish the statutory excuse.

Step 1: Obtain

Obtain original documents from either List A or List B (see our ‘List A’ and ‘List B’ sections).

Step 2: Check

You must check that the documents are genuine and that the person presenting them is the prospective employee, the rightful holder and allowed to do the type of work you are offering. You must check that:

1. photographs and dates of birth are consistent across documents and with the person’s appearance in order to detect impersonation;

2. expiry dates for permission to be in the UK have not passed;

3. any work restrictions to determine if they are allowed to do the type of work on offer (for students who have limited permission to work during term-times, you must also obtain, copy and retain details of their academic term and vacation times covering the duration of their period of study in the UK for which they will be employed);

4. the documents are genuine, have not been tampered with and belong to the holder; and

5. the reasons for any difference in names across documents can be explained by providing evidence (e.g. original marriage certificate, divorce decree absolute, deed poll).

Step 3: Copy

You must make a clear copy of each document in a format which cannot manually be altered and retain the copy securely: electronically or in hard copy.

You must also retain a secure record of the date on which you made the check. This requires more than simply writing the date on the copy document. If you write a date on the copy document, you must also record that this is the date on which you conducted the check.

You must copy and retain copies of:

1. Passports: any page with the document expiry date, the holder’s nationality, date of birth, signature, leave expiry date, biometric details, photograph and any page containing information indicating the holder has an entitlement to enter or remain in the UK (visa or entry stamp) and undertake the work in question. You do not need to make a copy of the front cover.

2. All other documents: the document in full, including both sides of a Biometric Residence Permit, Application Registration Card and a Residence Card (biometric format).

All copies of documents taken should be kept securely for the duration of employment and for two years afterwards. The copy must then be securely destroyed. 

This copying process will have to be repeated when organisations are carrying out follow-up checks in relation to any documents provided within List B.

Online checking service 

Since 29 January 2019, organisations can use the Home Office’s online right to work checking service to carry out immigration checks. Where the individual’s immigration status can be checked online, no further documentary evidence is required. The organisation will be required to meet the three conditions below in order to gain the statutory excuse.

From 6 April 2022, employers can only check the following documents online:

• Biometric residence card (BRC),
• Biometric residency permit (BRP), or
• Frontier workers permit (FWP)

using the Home Office’s online right to work check service. Physical copies of BRCs, BRPs and FWPs will be removed as an acceptable right to work document.

Share code

To carry out an online check, you will need a share code; the individual has to give you this. The code enables you to see their Home Office right to work record when you enter it along with their date of birth. Share codes expire 90 days after they have been issued. You will need to ask the individual to provide you with a new code if the one they originally provided has expired.

You should visit ‘View a job applicant’s right to work details’ on GOV.UK and access the service using the employer part of the service in order to obtain a statutory excuse. You will not establish a statutory excuse by viewing the migrant part of the service.

Steps

You must complete all stages of the check to establish the statutory excuse.

Step 1: Use the Home Office online service

The individual may provide the share code to you directly, or they may choose to send this to you via the service. If they choose to send it to you via the service, you will receive an email from right.to.work.service@notifications.service .gov.uk.

To check the person’s right to work details, you will need to:

• access the service ‘View a job applicant’s right to work details’ via GOV.UK to view the employer’s part of the service;
• enter the ‘share code’ provided to you by the individual and
• enter their date of birth.

Step 2: Check

You must check that the photograph on the online right to work check is of the individual in question. You must do this in the presence of the holder either in their physical presence or via live video link. If it is reasonably apparent from the photograph that the individual in question is not the individual to whom the information provided in the check relates, you may face a civil penalty in the event of illegal working. You must only employ the person or continue to employ an existing employee (if you are conducting a follow-up check) if the online check confirms they have the right to work and are not subject to a condition preventing them from doing the work in question.

Step 3: Retain evidence of the online check

You must retain evidence of the online right to work check. For online checks, this should be the ‘profile’ page confirming the individual’s right to work. This is the page that includes the individual’s photo and date on which the check was conducted. You will have the option of printing the profile or saving it as a PDF or HTML file. You should store this securely, (electronically or in hardcopy) for the duration of employment and for two years afterwards. The file must then be securely destroyed.

If you have any questions regarding Right to work checks or any other aspect of HR or Employment law do get in touch via help@yourhrpartner.co.uk

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This post was written by SKHR