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Right To Work Checks

It is unlawful to employ someone who does not have the right to work in the UK or who is in breach of their immigration conditions. Ensure you understand Right To Work Checks.

Right To Work Checks

Do you understand the right to work checks? It is unlawful to employ someone who does not have the right to work in the UK or who is in breach of their immigration conditions.

There are a number of offences that an employer can commit if they fail to check, before employing someone, that they had the right to work:

  • Criminal offence – to employ someone who it either knows or has “reasonable cause to believe” is an illegal worker (Immigration Act 2016). Depending on the offence, an employer may receive an unlimited fine and/or imprisonment of up to 5 years. The earnings of illegal workers may also be seized under the Proceeds of Crime Act 2002.
  • Civil fine – up to £20,000 for each individual found to have been an illegal worker.
  • Businesses can also be closed for 48 hours pending the outcome of an application for an illegal compliance order.

How do employers comply with Right to Work Checks?

To comply with their obligation to prevent illegal working, an employer must carry out the three step check:

  1. Check original documents from an acceptable list.

The Home Office has a checklist of the acceptable documents at Annex A (page 31)

  1. Check that the documents are valid with the applicant present. Check that:
  • the documents are genuine, original and unchanged;
  • the dates for the applicant’s right to work in the UK have not expired;
  • photos are the same across all documents and look like the applicant;
  • dates of birth are the same across all documents;
  • the applicant has permission to do the type of work you’re offering;
  • for students check evidence of their study and vacation times;
  • if 2 documents give different names, check that the applicant has supporting documents showing why they’re different, i.e. marriage certificate/divorce decree.
  1. Make and keep copies. Record the date the check was completed.
  • make a copy that cannot be changed, for example a photocopy;
  • for passports, copy any page with the expiry date and applicant’s details (for example nationality, date of birth and photograph) including a work visa;
  • for biometric residence permits and residence cards, copy both sides;
  • for all other documents you must make a complete copy;
  • keep copies during the applicant’s employment and for 2 years after they stop working for you;
  • record the date the check was made.

 

If the job applicant cannot show their documents:

  • You must ask the Home Office to check your employee or potential employee’s immigration employment status.
  • If the applicant has the right to work the Home Office will send you a ‘Positive Verification Notice’. You must keep this document.

Right to work checks during COVID-19

In normal circumstances all employers must complete a right to work check on or prior to any employee’s start date. As a result of the Coronavirus lockdown, the Home Office has confirmed that right to work checks can now be carried out over video calls.

The new process involves an individual sending a scanned copy or photo of their original documents via email or phone to the employer. The employer would then conduct a video call with the individual during which they would hold up the original documents to the camera and check them against the digital copy of the documents. Employers must record the date of the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”.

If the individual has a current Biometric Residence Permit or status under the EU Settlement Scheme, the employer can use the online right to work checking system and subsequently validate their identity on a video call. This service works based on the individual providing the employer with a share code. Once this is entered along with the individual’s date of birth, it enables the employer to access information on their right to work.

If the individual cannot show their documents, employers should use the Home Office Checking Service. Employers should wait to receive a positive verification notice before the applicant commences work as simply making an application to the service does not guarantee status to work.

Retrospective right to work checks – when these temporary COVID-19s measures end, employers will have 8 weeks to carry out retrospective checks on all the original documents. At this point, if an employer finds that the employee does not have the right to work in the United Kingdom, they must end their employment. For full details of the temporary measures, see the Home Office guidance.

Specialist business immigration legal advice

If you have any questions about right to work checks, or any other employment or HR issue, please contact our team of expert employment lawyers. Call 0117 906 9400, email hello@gl.law or complete the contact form

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