In the UK, every employee has to prove their right to work in the country under the Immigration, Asylum and Nationality Act. It is a criminal offence for an employer to employ an individual who does not have the permission to live or work in the UK.
This act requires the checking and verification of basic identification and, in cases of foreign nationals, proof of the correct visa to work in the UK.
For full guidance on right to work checks, please refer to Gov.uk.
Who has to Prove their Right to Work?
Every employee in the UK has to prove that they have the legal right to work here. In some cases, such as when using agency staff, the responsibility to verify an employee’s right to work lies with the agency rather than the employer. Nonetheless, in all cases, employees have to demonstrate their legal right to work here in the UK.
Employees automatically have the right to work in the UK if they:
- Are a British or Irish citizen
- Have pre-settled or settled status from the EU Settlement Scheme – or they have applied and are waiting for a decision
- Have a family permit from the EU Settlement Scheme
- Have indefinite leave to enter or remain in the UK
How can Non-UK Citizens Prove their Right to Work?
Following the UK’s departure from the European Union and the end of freedom of movement between the UK and EU, changes were made to the process required for recruiting people from nations outside the UK.
A new, points-based system was put in place in late 2020 where those coming to the UK for work must meet a specific set of requirements. If they meet these requirements, they score points. Those that gain enough points will be granted a visa. Employers will need a sponsor licence to hire most employees from outside the UK.
From July 2021, foreign nationals were no longer allowed to use their passport or national identity card to prove their right to work in the UK unless they are an Irish citizen.
In cases where employees don’t have the automatic right to work in the UK, individuals need to prove their right to work by providing their prospective employer with a share code issued via the online checking service that proves their immigatration status.
How can Employers Carry out Right to Work Checks?
At the time of writing, employers are still able to carry out right to work checks which have been adjusted due to the coronavirus. This means that, until September 30th 2022, employers can:
- Carry out right to work checks via video call
- Request scanned or photographed documents via email or mobile app, rather than the originals
- Check an employee’s or potential employee’s immigration status via the Home Office’s Employer Checking Service if they are unable to show their documents or online immigration status
Thereafter, employers will have to revert to carrying out manual right to work checks using original documents or, in a bid to move away from reliance on copies of physical documents, employers can conduct online right to work checks via the Home Office Checking Service or by enlisting the services of an Identity Service Provider (IDSP) to complete identity verification for British and Irish citizens with a valid passport.
What Documentation is Required for a Manual Right to Work Check?
In guidance from Gov.UK, there are three steps to carrying out a manual right to work check: Obtain, Check and Copy.
The obtain stage involves the employer gathering original documents that prove a prospective employee’s right to work in the UK.
Acceptable documents, among others, include:
- A current or expired passport showing the holder is a British citizen or a citizen of the UK and Colonies, or a passport or passport card showing the holder is an Irish citizen
- A current Immigration Status Document
- A birth or adoption certificate along with a permanent National Insurance number
- A Home Office-issued document showing that the holder has made an application for leave to enter or remain
- An Application Registration Card issued by the Home Office
Employers must then check that the documents are genuine and that the individual presenting them is the rightful holder and is permitted to do the type of work being offered.
Employers are advised to check for inconsistencies in photographs and dates of birth, that the document has not expired, for any restrictions on the type of work the individuals is permitted to carry out, for any signs of document tampering and that any discrepancies in names across documents can be explained and evidenced (for example, a marriage certificate or deed poll).
Copies must then be made of each document and retained securely (electronically or in hard copy). The date on which the document was checked must also be recorded.
In some cases, an employee’s right to work will be time-limited. Updated documentation must be rechecked before it expires, to allow the person to continue working.
Where right to work checks are carried out using the services of an IDSP or using the Home Office online service, there is no requirement to see any of the documents which are required as part of a manual check.
What is the Penalty for Non-Compliance?
Knowingly employing illegal workers is a civil penalty and the consequences for non-compliance with right to work legislation are severe.
If found guilty of employing someone you knew or had cause to believe did not have the legal right to work in the UK, individuals risk spending five years in jail and having to pay an unlimited fine.
Additionally, if the correct checks are not undertaken, fines of up to £20,000 per illegal worker can be issued and your business’ details may be published by UK Immigration Enforcement as a warning to other businesses, causing serious damage to your reputation.
Please note: While we here at NorthRow work with compliance professionals every day, we are not lawyers. This post is a high-level overview of Right to Work legislation and compliance. This post should not replace sound legal advice available from professional solicitors or employment lawyers.