All employers in the UK have a responsibility to ensure that the people they employ have a legal right to work. In order to do this, there are some right to work checks that you need to carry out to ensure compliance.
The way in which these checks are carried out has changed a number of times over the past two years, so it is easy to understand why you might be confused as to what you actually need to do.
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Why do you need to carry out right to work checks?
So why do you need to carry out right to work checks? The aim of carrying out these checks is to try and prevent illegal migration and to stop people from being vulnerable to exploitation. The legislation set out in the Immigration Act 2016 is very clear in its definitions and you could be liable for a civil penalty of up to £20,000 (per illegal employee) if you employ someone who does not have the right to work and you did not do the correct checks, or you did not do them properly.
When should you carry out a right to work check?
You are required to carry out right to work checks before you employ someone to ensure that they are legally allowed to work for you. These checks consist of either:
- A manual right to work check
- A right to work check using Identification Documentation Validation Technology (IDVT)
- A Home Office online right to work check
If you have conducted these checks properly, then you will be protected against penalties and can also be assured that the person you are employing is legally who they say they are and that they can work in the UK. Remember to be mindful to check expiry dates!
To carry out a manual right to work check, you must obtain original documents from either List A or List B found on the government website right to work checklist (ordinarily a copy of their passport if they are a UK or Irish citizen). You must check that the documents are genuine and the person presenting them to you matches the documentation. You should then make a clear copy of each document with a signature and date stating that this is the date the right to work check was made.
Currently, there is a Covid adjusted process in place until 30 September 2022, whereby you are eligible to check these documents remotely. You are able to carry out checks over a video call and then take a screenshot of the documents or ask your new employee to scan a copy of their original documents over to you. You must save the document and mark it as “adjusted check undertaken on [date] due to Covid-19”.
From 6 April 2022, there was the Introduction of the Identification Documentation Validation Technology (IDVT). This will now enable online right to work checks for British and Irish passport holders. This will be a chargeable service via an Identity Service Provider (IDSP). You can find a list of suppliers via this link: IDSP List.
The last type of check is a Home Office right to work check. You can use this service via the online service on the Government website: View an applicant’s right to work details. The online right to work checking service sets out what information you need to complete the online check. Those with Biometric Residence Cards (also known as UK Residence Cards), Biometric Residence Permits (received after a successful no time limit application) and Frontier Worker Permit (if you work in the UK but live in another country) holders will now be required to be checked via this service using a share code.
Employee share codes are valid for 90 days and will be given to you by your prospective employee. You will also need their date of birth. The share code is 9 characters long and should begin with the letter ‘W’. This indicates that the share code has been generated to evidence a right to work. If for any reason the code has expired, you must ask your new employee to generate another code for you to use.
The Home Office will then send you a ‘Positive Verification Notice’ to confirm the applicant has the right to work. You should retain a copy of this online check either by printing the profile or saving it as a PDF or HTML file.
If for any reason you find yourself in a situation where you believe someone is not legally able to work in the UK or has given you false documentation, then you must report this to an Immigration Officer.
European Economic Area (EA) Citizens
Since 1 July 2021, EEA citizens and their family members are required to have immigration status in the UK. They can no longer rely on an EEA passport or national identity card. They are now required to provide evidence of their immigration status in the UK in the same way as other foreign nationals. A certificate of application will be issued following the receipt of a valid application for an EEA residence card. The majority of EEA citizens can now prove their right to work using the Home Office online service.
Those from the EU, Switzerland, Norway, Iceland or Liechtenstein may also have been eligible to apply for the EU Settlement Scheme to be able to continue living and working in the UK.
How long do you need to keep documentation?
It is your responsibility to keep a record of every document you have checked in a format that cannot be altered. This has to be kept for the duration of employment and for a further two years after they have stopped working for you.
In order to give you peace of mind when it comes to staying legal with the Right to Work regulations, please feel free to contact a member of the MAD-HR team who would be happy to support you.