Right to Work - FAQ’s

The purpose of this article is to answer some of the questions employers often raise in relation to right to work checks.

Annex A sets out the documents which must be checked by the employer prior to commencement of employment. The contents are correct at the date of publication in October 2018.

Q.1) What is a right to work check?

The employer plays an important role in preventing illegal working in the UK. Right to work checks are a procedure an employer undertakes to ensure that their prospective and current employees have permission to work in the UK.

Q.2) Why do I need to do checks?

Employers have a duty to prevent illegal working in the United Kingdom. Right to work checks enable the employer to check that they are only employing people who have permission to work in the UK. This prevents or makes it difficult for those who are not allowed to work in the UK to undertake unlawful employment.

Carrying out and keeping a correct record of a right to work check gives the employer a statutory excuse or a defence against civil or criminal sanctions. If the employer does not undertake a right to work check properly and employs someone who is not allowed to work, then the employer can face a civil penalty or even worse be prosecuted for a criminal offence.

Q.3) When do I need to conduct a right to work check?

An employer will need to conduct an initial right to work check before a new employee starts employment.

Further checks may need to be carried out depending on the type of document the new employee provides.

If the new employee provides a document from List A of Annex A the new employee has no restrictions on their right to work in the UK. No further or follow-up checks are required. If the right to work check was carried out properly, the employer will have a statutory excuse for the duration of the new employee’s employment.

If the new employee provides a document from List B of Annex A this means that they have restrictions on their employment within the UK. The employer will need to undertake follow-up checks on the new employee. The timing of these checks will depend on whether the new employee has provided the document from Group 1 or Group 2. If the new employee provides a document from Group 1, the employer will need to do a follow-up check before the new employees’ leave expires. If the new employee provides a document from Group 2, the employer will need to do a follow-up check in six months

.Q.4) Who do I conduct checks on?

An employer needs to conduct right to work checks on all new employees.

The employer should not directly or indirectly discriminate and must not make assumptions about a person’s right to work in the UK or their immigration status.

Q.5) How do I conduct a check?

There is a 3 step process to conducting the right to work check properly.

Step 1 – Obtain The employer will need to obtain original documents from either List A or List B of acceptable documents at Annex A.

Step 2 – Check The employer must check that the original documents provided are genuine. The employer is not expected to be a fraud detection expert. The document must appear genuine on reasonable inspection. The employer will need to check that the photograph is a likeness of the new employee and that the date of birth appears correct. They will need to check that any expiry dates have not passed and that there is no restriction on the proposed time and duration of work.If the new employee has a different name to that on the document then appropriate documentation will need to be seen to confirm the name difference e.g. marriage certificate, change in name deed poll.

Step 3 – Retain The employer must take copies of the document provided by the prospective employee and retain this copy either electronically or as a hardcopy. It should be remembered that a copy of the front and back of a biometric residence permit must be retained. The employer will need to record the date that the check was conducted. It is advised that when the employer is conducting the check that they certify the copy of the document in writing confirming that they have undertaken the right to work check and confirm the date the check was undertaken.  It will be sufficient to right “Right to work check completed on [date]” on each copy document.

Q.6) What are the consequences of failing to undertake a right to work check properly?

Under section 15 of the Immigration, Asylum and Nationality Act 2006 an employer may be liable for a civil penalty if they employ someone who does not have a right to undertake the work in question. The employer can face a civil penalty of up to £20,000 per illegal worker they employ.

If the employer undertakes a right to work check but this has not been completed correctly, for example the copy document has not been dated, the employer will still be liable for a civil penalty. If the employer undertakes the right to work check properly then they will have a defence against liability for a civil penalty.

If an employer knows or reasonably believes that they are employing a new employee who does not have a right to work in the UK, they will not have a statutory excuse regardless of whether that check was undertaken correctly. Instead, the employer will have committed a criminal offence and may face up to 5 years imprisonment or an unlimited fine.

Furthermore, if the employer is subject to immigration control themselves, they will be liable for a civil penalty and this will be recorded on their Home Office file which could adversely affect any further immigration applications they make.

Lastly, if the employer is a holder of a Tier 2 or Tier 5 licence, and they fail to conduct a right to work check or receive a penalty they may risk losing their licence.

Q.7) Which documents are accepted? 

The Home Office have published a list of acceptable documents. This can be found at Annex A and contains two lists of acceptable documents; List A and List B

.Q.8) Do all documents for right to work checks have to be current?

From 16 May 2014, the following documents need to be current (not expired) at the time the check is undertaken in order for the employer to have a statutory excuse:

• Biometric Residence Permits;
• Immigration Status Documents;
• Passports of non-EEA nationals unless it contains a current Residence card; and
• Residence cards issued to non-EEA family members.

Q.9) Does an indefinite leave to remain stamp have to be in a current passport?

In respect of checks undertaken on or after 16 May 2014, the indefinite leave to remain stamp needs to be in a current valid passport.  The new employee is able to make an application for the indefinite leave to remain status to be endorsed onto a Biometric Residence Permit. If the employer is reasonably satisfied that the employee has indefinite leave to remain they can employ this new employee prior to the outcome of their application for a BRP but the employer must have a positive verification report from the Home Office Employer Checking Service.

Q.10) When do I need to use the Home Office Employer Checking Service?The Home Office Employer Checking Service is an online service which provides a positive or negative verification notice confirming whether or not the new employee has the right to work.

The employer will need to contact the Home Office Employer Checking Service in three instances. These are as follows:

• The employee in question provides a Certificate of Application which is less than six months old and which confirms permission to work; or
• The employee in question provides an Application Registration Card stating that they are permitted to work; or
• The employer is not satisfied with the documentation provided by the employee because they have an outstanding application with the Home Office or they have an appeal or administrative review pending and therefore cannot provide current evidence of their right to work.

If the employee has a right to work in the UK, the employer will receive a Positive Verification Notice from the Home Office. This will establish a statutory excuse for the employer for a period of six months. This check will need to be repeated before the six month period expires.

If you receive a Negative Verification Notice, you will not be able to employ the new employee. 

Q. 11) What do I do if I want training on right to work procedure, would like further advice or would like to check my current right to work processes?We offer a range of training options from our lunchtime picnic training to a full day audit and process review. We are also always happy to answer questions on an informal basis. If you would like to find out more, please contact Emma Brooksbank at [email protected] or Irum Saleem at [email protected] or telephone us on 03301 001 014. Annex A

You may also be interested in:

https://www.freeths.co.uk/2018/11/09/brexit-briefing-right-to-work/